Opinion
Feldman & Homyak, Michael R. Homyak, Denver, for plaintiff-appellee.
Duane O. Littell, Peter F. Jones, Denver, for defendant-appellant.
PIERCE, Judge.
Plaintiff brought this action seeking damages for injuries she received in an automobile accident with defendant. The accident occurred at a T intersection between Beechwood Drive and Welby Road in Thornton. Plaintiff, driving east on Beechwood Drive, approached Welby Road, a through street. There is a stop sign on Beechwood Drive, located several feet back from Welby Road, which controls access to Welby Road from Beechwood Drive. Cars entering Welby Road from Beechwood Drive must cross over a small knoll between the stop sign and Welby Road before entering Welby Road. There is some dispute as to whether or not plaintiff stopped for the stop sign on Beechwood Drive before entering onto Welby Road. However, whether she stopped first or not, plaintiff proceeded onto Welby Road, apparently intending to make a left turn to travel south. Just as she was entering the through street, the engine of her automobile stalled. She attempted to start it again and moved only a few feet when it again stopped. She continued in this lurching manner until she was straddling the center line of the road, still facing west. At this point, she was struck from the left by the defendant's vehicle.
Defendant had been approaching the intersection from the south at a speed of 15 to 20 miles per hour. Defendant noticed plaintiff's vehicle at the time it was entering the intersection while she was approximately 200 feet south of the plaintiff's vehicle. At the time, she noted that plaintiff's vehicle was moving in a lurching manner. Defendant slowed down, but did not take any avasive action or make any direct attempt to avoid the collision until she applied her brakes. The record indicates that there were 57 feet of skid marks prior to impact. All thses acts occurred before the effective date of the comparative negligence statute. See 1971 Perm.Supp., C.R.S.1963, 41--2--14. The jury rendered a verdict for plaintiff, and defendant appeals from the judgment entered thereon.
Each party contended that the other was negligent. Plaintiff further asserted that even if she were engligent, defendant had the last clear chance to avoid the accident. The court instructed the jury on negligence, contributory negligence, and last clear chance. Defendant here contends that since the plaintiff had not admitted her contributory negligence, and the court had not, as a matter of law, determined that plaintiff was contributorily negligent, it was improper to submit a last clear chance instruction to the jury. We do not agree.
The doctrine of last clear chance does not apply unless there is evidence of contributory negligence on the part of the plaintiff, and only then where the trier of fact might reasonably find that all the elements of last clear chance have been proven. Where there is a conflict in the evidence on thses issues, both are proper subjects for determination by a jury and, in such an instance, it was not only proper, but necessary, that the jury be instructed regarding negligence, contributory negligence and last clear chance. See Freeman v. Schulz, 81 Colo. 535, 256 P. 631; Colorado Jury Instructions 9:1 and 9:18.
From the facts presented in evidence, a jury could reasonably have concluded that the plaintiff, through her own negligence, had placed herself in a position of danger from which she could not extricate herself; and that the defendant, traveling at a slow speed and being aware of plaintiff for at least 200 feet from point of impact, did not exercise reasonable care to avoid the collision and the resultant damages. The instruction on last clear chance adapted from Colorado Jury Instruction 9:18 contained a proper definition of that doctrine, and it was properly submitted to the jury. Independent Lumber Co. v. Leatherwood, 102 Colo. 460, 79 P.2d 1052; Gomez v. Black, Colo.App., 511 P.2d 531.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.