Kuhn v. Frazier , 146 Colo. 202 ( 1961 )

Mr. Justice Doyle

delivered the opinion of the Court.

Plaintiff in error was defendant in the trial court and seeks review of a judgment based on a jury award to defendant in error, who was plaintiff below. The parties will be referred to as they appeared in the trial court.

The case arises from an automobile collision which occurred at the intersection of Willamette, an east-west street, and Custer, a north-south street, in the City of Colorado Springs. Just prior to the collision, defendant had been proceeding west on Willamette. Plaintiff had been parked on the west side of Custer Street headed south. She emerged from a house, got into her car, pulled around a parked car which had been in front of hers and proceeded south toward Willamette Street. She stopped at the Custer-Willamette intersection, looked to the left and right and pulled into the intersection, traveling in second gear at approximately 10 miles per hour. She was struck broadside by the automobile of defendant. She testified that she did not see defendant’s vehicle. At the trial, defendant testified he had been driving between 20 and 30 miles per hour. However, he previously told the investigating officer that his speed had been 30 miles per hour.

The northeast corner of the intersection in question is described by the police officer witness as “blind,” the view of a driver to his right proceeding west on Willamette Street being obstructed during the last 50 feet of his approach. This is due to the fact that there is a 3-foot terrace which extends to the sidewalks on both Custer and Willamette Streets. There are trees on both the terrace and the parkway. Willamette carries considerable traffic; however, the intersection is not controlled by signal lights or stop signs. The point of impact was fixed at 15 feet south of the north curb line of Willamette and 24 feet east of the west curb line of Custer.

Defendant’s car left 21 feet of skid marks which started before he entered the intersection. The right of way ordinance introduced and relied on by the plaintiff gives the right of way to the vehicle on the right. The speed limit on Willamette Street was shown to be 30 miles per hour, but the particular intersection was interpreted by the investigating officer as requiring a speed limit of 15 miles per hour, being an obstructed one in which the driver does not have a clear and uninterrupted view for a distance of 50 feet approaching the intersection.

Defendant predicates error on the failure of the trial court to direct a verdict in his favor. He claims first that he was not shown to have been guilty of negligence; that the ordinance which awards the right of way to the person on the right contemplates two vehicles approaching an intersection; that in the present instance, plaintiff’s vehicle was not approaching in that it was stopped and consequently defendant was not shown to have taken the right of way. Defendant’s second contention is that, assuming negligence on his part, the plaintiff was guilty of contributory negligence as a matter of law which bars her recovery. Defendant argues:

“* * * The law is that to look and fail to see what must be plainly visible and had to be there is the same as not looking at all, and, therefore, one is guilty of contributory negligence as a matter of law in doing that. Further the evidence shows that the plaintiff, who is in a place of safety, left that place of safety and pulled out directly in front of a car which was proceeding in a westerly direction at which the plaintiff claims was an excessive rate of speed. Further, that the plaintiff made no attempt to avoid this accident in any way; * * *”

Defendant thus argues that the undisputed evidence establishes plaintiff’s contributory negligence to an extent that reasonable minds could not differ, thus rendering the question one of law. Our inquiry is therefore limited to whether the facts point indisputably to this one conclusion.

There was sufficient evidence of defendant’s negligence to warrant submission of the case to the jury. The plaintiff had the right of way and the defendant clearly failed to yield it to her, or even attempt to do so. Defendant was shown to have been driving substantially in excess of the 15 miles per hour limit applicable to obstructed corners. Therefore, the sole issue in the case is whether plaintiff must be adjudged contributorily negligent and whether her conduct was the proximate cause of the collision so that the court was required to direct a verdict for defendant or enter judgment notwithstanding the verdict.

Defendant testified at the trial that the plaintiffs vehicle was just entering the intersection when he first saw it. His attention was called to a prior statement made in a deposition in which he said that plaintiff’s vehicle was a car length and one-half through the intersection when he first saw it. He tried to reconcile this at the trial by saying:

“I imagine probably from the time that I seen her, by the time I got my foot on the brake it was that far into the intersection.”

Thus defendant is shown to have failed to anticipate the presence of plaintiff notwithstanding his obstructed view; and failed to avail himself of an opportunity to discover her presence, while driving at a speed which precluded his avoiding the collision.

An important factor bearing on the issue of contributory negligence is the relative speed. Defendant was moving 30 miles per hour or 44 feet per second. The plaintiff was traveling one-third that distance per second. She had stopped as a result of the obstructed view to her left and had moved forward at a cautious rate of speed. The disparity in the respective speeds could account for the failure of plaintiff to see the defendant’s vehicle, even though she looked to her left. So considered, plaintiff’s conduct is consistent with reasonable prudence.

The case of Clibon v. Wayman, 137 Colo. 495, 327 P. (2d) 283, relied on by defendant, is distinguishable on its facts. There the plaintiff not only failed to look efficiently but also drove into an intersection at 25 miles per hour notwithstanding that it was obstructed. He was shown to have violated the identical ordinance which the defendant here is shown to have violated by exceeding the 15 miles per hour limit applicable to obstructed approaches to intersections. It was there said:

“Such conduct is negligence per se and negligence as a matter of law.”

Werner v. Schrader, 127 Colo. 523, 258 P. (2d) 766, Aaron v. Wesebaum, 114 Colo. 61, 162 P. (2d) 232 and Fabling v. Jones, 108 Colo. 144, 114 P. (2d) 1100, are even less applicable. In Werner and Aaron the defendant was on the right and the plaintiff failed to yield thus rendering plaintiff guilty of negligence per se. In Fabling, the plaintiff, a pedestrian, walked into the path of an oncoming car. The cliches expressed in those cases, that to look and fail to see what is plainly visible or to leave a place of safety in favor of a place of danger “without giving reasonable heed to the consequences” constitutes negligence, do not apply to the situation before us. They cannot be transplanted into the instant fact situation to relieve the defendant of the consequences of his palpable negligence.

Contrary to defendant’s contention, our decisions have not held that the failure to see an oncoming automobile invariably constitutes negligence as a matter of law. In Denver Equipment Co. v. Newell, 115 Colo. 23, 169 P. (2d) 174, it was held that the failure of plaintiff, having the right of way and an unobstructed view, to look to the left furnished evidence of his contributory negligence which warranted submission of the issue to the jury. In that case it was said:

“In the instant case plaintiff’s driver had, as we have said, the right of way, notwithstanding which he could not rightfully, by virtue of it, proceed blindly and, relying upon the right, wholly disregard automobiles approaching from his left. The undisputed evidence offered by plaintiff’s driver clearly and conclusively establishes that when he approached the intersection of Thirty-second avenue and Steele street he had an unobstructed view of the latter, both to the right and to the left. He did not look to the left. Whether, under such circumstances, he exercised the care and caution required of a careful and prudent driver, was a question of fact for the jury, and if it should determine that he did not exercise that degree of care and caution, it was for it to say whether, by failing so to do, he was guilty of negligence which was the proximate or contributing cause of the damage.” (Emphasis ours.)

In a very early case the question was considered one of fact. See Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 Pac. 850.

A comparable question was presented in Kendall Transportation Co. v. Jungck, 136 Colo. 339, 316 P. (2d) 1052. There the plaintiff had been driving south on Santa Fe Drive, a through street. The defendant truck driver observed the stop sign, entered Santa Fe Drive and was struck on the left side by plaintiff. In urging reversal of a judgemnt in favor of plaintiff, the Kendall Company argued that plaintiff’s contributory negligence was a question of law which should not have been submitted to the jury. This was the question posed in the opinion of Mr. Justice Moore. In holding that the question was one of fact, the Court observed:

“* * * For authorities to the effect that the question of contributory negligence, in actions comparable to the instant case, is one for the jury, or for the trial court sitting without a jury, see Prentiss v. Johnston, et al., 119 Colo. 370, 203 P. (2d) 733; Markley v. Hilkey Bros., 113 Colo. 562, 160 P. (2d) 349; Woods v. Siegrist, 112 Colo. 257, 149 P. (2d) 241; and Rigot v. Conda, supra.

“Upon consideration of the record before us we cannot say that the trial court was obligated, as a matter of law, to find that Jungck was guilty of contributory negligence. It is sufficient to say that the evidence is in conflict with relation to lighting at the intersection, obstruction of vision, pertinent time intervals, distances and measurements bearing upon the angle of visibility, and other particulars.”

There are numerous variations in the cases treating of the present problem, wherein two possible inferenees may be drawn, one establishing contributory negligence, and the other freedom from contributory negligence. These hold that the question is for the jury. See, in addition to the cases cited in Kendall, supra, Knaus v. Yoder, 98 Colo. 1, 52 P. (2d) 1152; Stocker v. Newcomb, 91 Colo. 479, 15 P. (2d) 975; Brothers v. Chatfield, 113 Colo. 7, 154 P. (2d) 46. Cf. Bauserman v. White, 108 Colo. 101, 114 P. (2d) 557.

In the case at bar, it was possible for the jury to conclude that the plaintiff was not guilty of negligence and that her conduct was not the proximate cause of the collision. She had the right of way but nevertheless stopped and looked. She proceeded at a prudent rate of speed. From these facts the jury could reasonably conclude that the collision was the product of defendant’s excessive speed and lack of concern for any vehicle which might be to his right. Traveling 44 feet per second, defendant could well have consumed the area of reasonable clearance previously observed by the plaintiff before she proceeded into the intersection. The jury may have concluded that plaintiff had a clearance when she looked and that she entered the intersection without anticipating the negligent conduct of defendant, which she was not required to foresee.

Finally, it is important to note that every possible theory of plaintiff’s negligence was submitted to the jury in the trial court’s instructions. For example, the jury was instructed that one having the right of way nevertheless is not absolved from the exercise of reasonable care and that to look in such a manner as to fail to see that which was plainly visible constitutes a failure to exercise reasonable care. In a further instruction, the jury was told that if it found that the plaintiff deliberately drove from a place of safety into a path of danger without giving reasonable heed to possible consequences, her conduct would be contributory negligence. It seems clear, therefore, that the factual and legal theories of the defendant were fully presented and considered.

Being of the opinion that the question was one of fact for the jury to determine under proper instructions, we conclude that the trial court was correct in its ruling.

The judgment is affirmed.

Mr. Justice Day dissents.