Opinion
Feb. 4, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Reno & Judd, David J. Turner, denver, for plaintiffs-appellants.
Yegge, Hall & Evans, Robert S. Treece, Denver, for defendants-appellees.
Page 979
PIERCE, Judge.
This is a negligence action concerning an accident between a motor vehicle and a pedestrian. At the close of the plaintiffs' evidence on the issue of liability, the trial court directed a verdict in favor of defendants on the ground that, as a matter of law, the driver of defendants' vehicle was not guilty of any negligence. We affirm.
It is apparently agreed that there was some negligence on the part of the pedestrian which was a proximate cause of his injuries. The sole issue is whether there was sufficient evidence of negligence on the part of defendant driver to submit the matter to the jury for a determination of the comparative negligence of the driver and the pedestrian and for a determination of damages.
The essential facts, viewed in the light most favorable to plaintiffs, were that defendant driver was driving his vehicle on a blacktop state highway on a dark night at 40 miles per hour in a 45 mile per hour zone. The pedestrian, dressed in a brown coat and a boy scout uniform, moved rapidly from a driveway to the left of the highway into the highway where he collided with the defendants' vehicle. The driver applied his brakes after seeing the pedestrian and left skid marks of 34 feet before he went onto the right shoulder of the road and traversed another 40 feet before coming to a complete stop. Although the point of impact within the range of the skid mark is undetermined, we assume, in plaintiffs' favor, that impact occurred at the point where the skid marks begin. There were restaurants on each side of the highway, both well off the roadway, which provided little illumination to the highway. There was also a streetlight at an undetermined destance from the accident scene which may have partially illuminated the roadway.
Plaintiff pedestrian argues that the driver of the defendants' vehicle was negligent in that he should have seen the plaintiff and some companions of the plaintiff, who, although off the roadway, were near the shoulder of the road and should have taken evasive measures sooner than he did after the pedestrian entered the highway.
The trial court dismissed the complaint on the authority of Dennis v. Johnson, 136 Colo. 357, 317 P.2d 890. In that case, the court stated:
'(D)efendant . . . was approaching in the outside lane . . . at approximately 35 miles per hour in a zone which was posted for a speed of 45 miles per hour. The pavement was wet and some of the neon signs on the storefronts along Colfax Avenue caused a glare on the pavement. When Dennis' headlights, which were on the low beam and which shone out over 100 feet in front of the car, revealed the pedestrian Johnson, Dennis immediately applied his brakes. The car skidded . . . to a stop in 72 feet. This figure given by the officer did not deduct the approximately 15 foot length of the defendant's car. As near as could be determined from the physical facts, the pedestrian was hit about 25 feet before the car came to a complete stop.
'The foregoing summary of facts reveals these significant points: 1. The defendant Dennis was not shown to have been in any manner driving negligently and carelessly. . . .'
The court in Dennis reached the conclusion that:
'As we view the evidence, it was clearly the duty of the trial court to direct a verdict in favor of defendant at the completion of plaintiff's evidence on the ground of the sole negligence of the plaintiff as a matter of law. . . .'
We are unable to discern any significant difference favorable to plaintiff between the Dennis fact situation and the facts of this case. The evidence here was therefore insufficient for any reasonable fact finder to conclude that the defendant driver was chargeable with negligence greater than that of the injured plaintiff. Section 13--21--11, C.R.S.1973 (C.R.S.1963, 41--2--14 (1971 Perm.Supp.)).
Judgment affirmed.
SMITH and KELLY, JJ., concur.