Opinion
Rehearing Denied Oct. 14, 1970.
Page 571
Roger E. Stevens, Don P. Stimmel, Boulder, for plaintiffs in error.
Yegge, Hall, Treece & Evans, Don R. Evans, Denver, for defendant in error.
COYTE, 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.
On June 9, 1965, at approximately 5:40 P.M. during a heavy rainstorm, plaintiff in error, plaintiff below, was proceeding west on Ninth Avenue in Longmont, Colorado, when his vehicle was struck by one driven by defendant in error, defendant below. Although the exact point of impact could not be determined at trial, the evidence did disclose that the impact occurred within the intersection of Ninth and Bross Streets. Shortly before the impact, approximately one-quarter of a block east of the intersection, plaintiff had apparently passed or was in the process of passing a second westbound vehicle on that vehcile's right side. At that time, according to the driver of the vehicle being passed, defendant had stopped at the stop sign on Bross Street, and thereafter proceeded into the intersection, striking plaintiff's vehicle on the left side.
As a result of this collision, plaintiff suffered personal injuries, and brought suit to recover for the damages sustained. After the presentation of all the evidence, the plaintiff moved for a directed verdict on the issue of liability, which was denied by the trial court. The case was submitted to the jury, which found for the defendant.
Plaintiff now appeals, asserting that the trial court erred in refusing to direct a verdict against the defendant on the issue of liability and in not restricting the jury to a determination of the issue of damages alone.
We are in agreement with the trial court's ruling. When a party moves for a directed verdict, the evidence should be viewed in the light most favorable to the opposite party, and if reasonable minds might reach a conclusion in favor of the non-moving party, then the motion should be denied and the issues submitted to the jury. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185.
In this case, the determination of the question of who caused the collision depends upon which party had the right-of-way at the intersection of Bross and Ninth Streets. Instruction no. 8, given by the court, stated the applicable municipal ordinance of the City of Longmont:
'11.6.--Vehicles entering through street intersection.
(a) The driver of a vehicle shall stop as required by this ordinance at the entrance to a through street and shall yield the right-of-way to other vehicles which have entered the intersection from said through street or which are approaching so closely on said through street as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through street street shall yield the right-of-way to the vehicle so proceeding into or across the through street.'
The evidence is undisputed that defendant did obey that part of the ordinance requiring him to halt his vehicle before proceeding into the intersection. However, defendant needed only to yield to vehicles already in the intersection or to those so close as to constitute an 'immediate hazard,' and thereafter a vehicle which was not so close as to constitute an 'immediate hazard' was required to yield to the defendant as he entered the through street.
Thus, we have a question of fact that was presented to the jury for its determination. That is, was plaintiff's vehicle so close to the intersection as to constitute an 'immediate hazard' to defendant thereby giving the right-of-way to plaintiff? Or, on the other hand, did defendant have the right-of-way, since he had stopped as required, and since plaintiff, at that time, was too far away from the intersection to constitute an 'immediate hazard' to him?
The evidence is in conflict as to whether the plaintiff or the defendant had the right-of-way in the intersection. Under these circumstances, the resolution of the issue was clearly within the province of the jury. Rosenthal v. Citizens State Bank of Cortez, 129 Colo. 35, 266 P.2d 767.
Judgment affirmed.
ENOCH, J., concurs.
PIERCE, J., dissents.
PIERCE, Judge (dissenting).
I dissent.
Ninth Avenue, at the intersection in question, followed a straight, east-west course. It was a through street, with two lanes of travel for each direction. It carried a 30 m.p.h. speed limit. Bross on the other hand, intersected from the north and south with a dog-leg at the intersection--i.e.: the northern extension intersected Ninth further to the west than the southern extension. It had one lane of travel for each direction, both of which were regulated by stop signs favoring Ninth.
Uncontroverted evidence shows that plaintiff was traveling at less than the posted speed limit at the time of the collision, and that he had just passed, or was in the act of passing, on its right and in the right-hand lane of travel, a slower moving vehicle. He could lawfully do this.
As my colleagues point out, defendant, traveling north on Bross, stopped for the stop sign at Ninth before proceeding to attempt to cross the intersection. At that same instant, plaintiff was approaching the intersection at approximately twenty-five miles per hour in the right-hand lane of travel, alongside, or slightly in front of, the other west-bound vehicle. No testimony, nor any reasonable inference from any testimony given, nor the physical facts surrounding the accident, itself, could place plaintiff further than one-quarter of a block from that intersection at the time defendant started to enter; yet defendant asserted that at that time he looked and 'saw no hazardous traffic' (later, on cross-examination, changed to no traffic at all). He then pulled out into the intersection and struck plaintiff's car squarely in its left side, knocking it off of the roadway.
Under these circumstances, since defendant's vision along Ninth Avenue was, by his own testimony, unobstructed, and since he looked as required, but did not see what was clearly there, in close proximity, to be seen--namely plaintiff--defendant was negligent as a matter of law. Fabling v. Jones, 108 Colo. 144, 114 P.2d 1100. The trial court should have so ruled.
That plaintiff was close enough to the intersection to constitute an 'immediate hazard', and that, therefore, he had the right-of-way under the Longmont ordinance cited is, I think, obvious from the fact that the accident occurred, although I realize that that fact, in itself, does not under Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705, give rise to a presumption of negligence on defendant's part.
Under these circumstances, the trial court should have ruled defendant negligent as a matter of law and allowed only the issues of plaintiff's possible contributory negligence (if any) and damages to go to the jury. Since it did not so rule, and since, under the verdict rendered, plaintiff may have been denied recovery solely because defendant was found not negligent, the judgment should be reversed and the case remanded for a new trial.