Opinion
Dec. 11, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 659
Steven M. Hannon, Greeley, Holland & Hart, Edwin S. Kahn, Denver, for plaintiff-appellant.
Dosh, DeMoulin, Anderson & Campbell, Richard W. Laugesen, Denver, for defendants-appellees.
COYTE, Judge.
Plaintiff, Dennis Mahoney, appeals from the judgment entered on a directed verdict in favor of defendants in a negligence action. We affirm.
This action arose as the result of a collision between a motorcycle operated by plaintiff and an automobile driven by defendant Marc Crow which occurred on U.S. Highway 285 near Villa Grove, Colorado, on September 6, 1970. Plaintiff brought this action against Marc Crow alleging negligent operation of the automobile and against his father, Forrest Crow, as owner of the vehicle. Defendants denied negligence and asserted that plaintiff was contributorily negligent.
The record discloses that U.S. Highway 285 in the vicinity of the accident is a two-way, undivided asphalt-paved highway 24 feet wide with paved shoulders four feet wide. The highway runs in a northerly and southerly direction. There are no intersecting roads in the immediate vicinity of the accident. On the day of the accident, the weather was clear and the road surface was dry. The posted speed limit was 70 miles per hour.
Plaintiff has no recollection whatsoever of the accident nor the events occurring immediately prior thereto. However, he did testify that the accident occurred while he was traveling from Leadville, Colorado, to Santa Fe, New Mexico, which required a route southbound on U.S. Highway 285.
Defendant Marc Crow was called by plaintiff for cross-examination and testified that at the time of the accident he was driving his father's automobile in a southerly direction on U.S. Highway 285 at an approximate speed of 60 miles per hour; that he observed the plaintiff astride his motorcycle parked on the right-hand shoulder of the highway and facing in a southerly direction; that since there was no traffic visible behind him or a mile ahead he signaled and began to move into the northbound lane in order to pass by the motorcycle; that as his vehicle approached the motorcycle, plaintiff started onto the highway in a southerly direction and suddenly turned to the east in front of defendant's automobile; and that he applied his brakes but was unable to avoid striking plaintiff. The Colorado State Patrol officer who investigated the accident made a diagram and took photographs which were introduced as exhibits at the trial. The officer testified that his investigation showed that the point of impact was four feet east of the center line (I.e., in the northbound lane) and that there were skid marks on the highway which began 80 feet north of the point of impact and extended 65 feet south of it. The officer further testified that his investigation revealed that the impact occurred between the front of defendant's automobile and the left side of the motorcycle and that the vehicles were at a 90 angle to each other, with the motorcycle facing east across the highway at the point of impact. He further testified that there were fresh oil drippings on the west shoulder of the highway approximately at the location where Marc Crow had testified plaintiff's motorcycle was when he first saw it. Finally, the officer testified that defendant's account of his speed and the events which transpired was consistent with the physical evidence developed by his investigation.
At the conclusion of plaintiff's case, defendants moved for a directed verdict. The trial court found as a matter of law that plaintiff had failed to establish negligence on the part of defendant and that the evidence showed as a matter of law that plaintiff was contributorily negligent. The trial court granted defendants' motion for directed verdict and dismissed the action.
On appeal, plaintiff contends: (1) There exists a presumption of negligence on the part of defendant because the collision occurred on the wrong side of the highway (I.e., in the northbound lane while defendant was traveling south); (2) that plaintiff could not be guilty of contributory negligence as a matter of law because, due to his total memory loss, he was entitled to a presumption of due care on his part; and (3) the trial court erred by entering a directed verdict because it is the function of the jury to determine the credibility of defendant's testimony and the weight to be given to it.
We reject plaintiff's contention that the occurrence of the accident while defendant was on the left side of the highway raises a rebuttable presumption of negligence on the part of defendant. When a collision occurs between vehicles traveling in opposite directions and defendant's vehicle is found to have been traveling on the left side of the road, our Supreme Court has, in some circumstances, recognized a presumption of negligence on the part of defendant. See, e.g., Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019.
However, the uncontradicted evidence here indicates that defendant crossed to the left side of the road only after properly signaling; that such lane change was for the purpose of passing a vehicle traveling in the same direction as defendant; and that the accident occurred between plaintiff and defendant only after plaintiff also crossed into the left-hand lane. The actions of the defendant were in conformity with C.R.S.1963, 13--5--37(1)(b). Under such circumstances, a presumption of negligence on the part of defendant is not available to plaintiff.
The rule with regard to direction of verdicts, upon request by the defendant, is that the evidence must be considered in the light most favorable to the plaintiff, and that when so considered, if reasonable minds could draw but one conclusion from facts not in dispute, and that conclusion is against the plaintiff, the directed verdict may be granted. Peterson v. Nevada Motor Rentals, Inc., 28 Colo.App. 102, 470 P.2d 905. Here, as noted above, there was no presumption of negligence on the part of defendant, nor was there any testimony or physical evidence introduced from which reasonable minds could draw an inference of negligence on the part of defendant. Thus, we conclude that the trial court properly directed a verdict for defendants.
In view of our disposition of the issue of defendant's negligence, it is not necessary to consider plaintiff's contentions with respect to the issue of contributory negligence.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.