Opinion
March 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
George A. Hinshaw, Aurora, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Richard W. Laugeson, Jr., Denver, for defendant in error.
PIERCE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the order of their trial court appearance.
Plaintiff appeals from judgment on a jury verdict in favor of defendant. Her principal contention is that the trial court should have directed a verdict in her favor on the issue of liability. It is her view: that defendant's evidence was incredible; that he could not have entered the intersection first; that under the applicable traffic ordinance, she had the right of way; and that therefore, as a matter of law, she was entitled to a directed verdict. We disagree.
The ordinances of the City of Aurora which are applicable to the issues of defendant's negligence and plaintiff's contributory negligence, are as follows:
Sec. 11--2--1: 'Right-of-Way: The phrase right-of-way shall mean the privilege of the immediate use of the street.'
Sec. 11--5--1: 'Vehicle Approaching or Entering Intersection:
(A) It shall be unlawful for the driver of any vehicle entering any intersection to fail to yield the right-of-way to any vehicle already within the intersection.
(B) When two (2) or more vehicles approach an intersection or enter an intersection from different roadways at approximately the same time, it shall be unlawful for the driver of the vehicle on the left to fail to yield the right-of-way to the driver of the vehicle on the right.'
Sec. 11--18--4: 'Careless Driving: Every person operating a vehicle upon the streets within this City shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic and use of these streets and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. Failure to drive in such manner shall constitute careless driving and a violation of this Title.'
Plaintiff, approaching the intersection from defendant's right, was admittedly traveling 25 miles per hour. She skidded 14 feet before reaching the intersection, an additional 13 feet before the slight collision, and continued an additional 28 feet before stopping. The evidence does not establish where plaintiff was, or where defendant's vehicle was, at the time she first saw him and applied her brakes. But taking normal reaction time into account, she would have had to be a significant distance from the intersection when she began reacting to the situation.
Defendant, on the other hand, maintained that he slowed down for the intersection because of a drainage dip and because his vision to the right was somewhat obscured by parked cars. He claimed that he was already in the intersection when he saw plaintiff approaching. Commencing almost at the edge of the intersection, he left 23 feet of skid marks, and came to a virtual or complete stop some 19 feet into the intersection. It certainly is not unreasonable to take the view that defendant entered the intersection first when one considers that his vehicle was 19 feet long, that it could not be determined whether his front or rear wheels caused the skid marks, and that some evidence indicates that his speed was five miles per hour or less.
We have set forth only a few of the variables presented by the conflicting evidence that the finder of fact could consider in determining this issue. Where evidence is in dispute and there is no way to determine with mathematical exactitude who entered the intersection first, the issue is clearly within the province of a jury, and it would have been error to direct a verdict. Cherrie v. Bonham's Dry Cleaning & Laundry, Colo., 459 P.2d 130; Gomez v. Miller, Colo. 459 P.2d 126; Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185; Rosenthal v. Citizens State Bank, 129 Colo. 35, 266 P.2d 767.
The trial court properly submitted the issues of negligence and contributory negligence to the jury. It is well established in this state that the right of way in an uncontrolled intersection is a relative, rather than an absolute, right; and that the establishment of a right of way in favor of either driver does not relieve the party having the technical right of way from the duty of reasonable care. Swanson v. McQuown, 139 Colo. 442, 340 P.2d 1063; Denver Equipment Co. v. Newell, 115 Colo. 23, 169 P.2d 174.
Plaintiff also complains that the court erred by failing to give a tendered instruction regarding the responsibility placed upon a party who looks but fails to see what was plainly visible. This aspect of the law, however, was adequately covered by other instructions and plaintiff was not prejudiced by the court's failure to give the instruction in question.
Judgment affirmed.
COYTE and DWYER, JJ., concur.