Opinion
Holland & Hart, Richard M. Koon, Denver, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Paul D. Renner, Denver, for defendants in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties in this action appear here in the same order as in the trial court and will be referred to herein as plaintiff and defendants or by name.
The plaintiff filed suit for damages incurred in a two car accident on October 13, 1962, in the parking lot of the Westland Shopping Center at 10400 West Colfax in Jefferson County. Defendants alleged that plaintiff was guilty of contributory negligence which was the proximate cause of the accident. Trial was to a jury. At the conclusion of plaintiff's case, the trial court granted defendants' motion for a 'judgment of dismissal.' We assume the defendants intended to make a motion for a Directed verdict which would have been the proper motion in this case. R.C.P.Colo. 50. Since the trial court treated it as a motion for a directed verdict and no issue is raised by the misnomer, we have in this opinion considered it as harmless error.
The parking lot in question had no traffic control devices, but did have traffic lanes painted on the blacktop surface. There were two lane traffic patterns running east and west referred to by counsel as main thoroughfares. Running north and south were single one-way lanes which contained the parking stalls and were identified as feeder lanes. These feeder lanes crossed over the main thoroughfares throughout the parking lot. Plaintiff was driving westerly in one of these main thoroughfares and defendant was driving northerly in one of the feeder lanes. Plaintiff's vehicle was struck in the left front fender and door by the front end of defendant's vehicle as he emerged from a feeder lane. Plaintiff was traveling approximately 10 miles per hour and did not see defendant's vehicle until the moment of impact. The accident occurred between 9:30 and 9:40 in the morning. There were no cars parked in the immediate area and apparently there was no other traffic at the time. There was nothing to obstruct the vision in any direction. The record supports the trial court's conclusion that this was not a case involving the doctrine of looking and not seeing, but a case of not looking at all except straight ahead. On both direct and cross examination, plaintiff stated that as she approached and started across this particular feeder lane she was looking straight ahead or forward.
Plaintiff alleges as error that the trial court failed to consider the evidence in the light most favorable to the plaintiff and when so viewed, the trial court should have found that the evidence clearly showed that the plaintiff did in fact look before driving through the intersection. We find that the trial court not only stated in its findings that it did consider the evidence in the light most favorable to the plaintiff, but that the evidence so viewed by this court supports the trial court's conclusion. The plaintiff's evidence shows she was looking forward and not to the right or left at the approach to this feeder lane and upon crossing the feeder lane.
Plaintiff further alleges as error that assuming that plaintiff did fail to look to her left before crossing the intersection, it was error to find her guilty of contributory negligence as a matter of law. We disagree and concur with the trial court.
Plaintiff repeatedly refers to this as an intersection accident and that plaintiff had the right of way. This was not a true intersection as commonly considered in a public street. The Colorado cases cited by plaintiff are not in point as they relate to intersection accidents on public streets where laws or ordinances specifically define which vehicle has the right of way. There are no ordinances or laws governing the traffic flow in this parking lot, nor are there any Colorado case decisions which would give the right of way to a particular driver in a private parking lot.
The trial court stated as part of its ruling:
'I further conclude that since there were no control devices at this intersection of the driving lanes, that she had a greater duty of care to look and to watch out for other vehicles on this parking lot, a greater duty than she would have had had she been on a public highway where the rules of the road would have given her perhaps the right-of-way and some assurance that other people would be watching out for her as she drove on this driving lane.'
We think the trial court's reasoning is sound and concur that as a matter of law, in this case, considering the particular facts and circumstances, the plaintiff was guilty of contributory negligence.
Judgment affirmed.
DUFFORD and PIERCE, JJ., concur.