Opinion
No. 73-254
Decided July 23, 1974. Rehearing denied August 13, 1974. Certiorari granted October 7, 1974.
From a judgment dismissing her action for damages resulting from an automobile accident, plaintiff appealed.
Reversed
1. AUTOMOBILES — Driving to Left — Presumption of Negligence — Rebuttable — — Violation — City Ordinance — Not Necessarily — Negligence Per Se — Jury Could Conclude — Reasonable. Driving to the left of center may give rise to a presumption of negligence, but the presumption may be rebutted by evidence showing that the conduct was reasonable under the circumstances; thus, although plaintiff in personal injury action may have violated city ordinance by driving one and one half feet to the left of the center on a narrow roadway, and although defendant who was emerging from alleyway may have been a member of the class intended to be protected by that ordinance, such violation is not necessarily negligence per se, and, under the circumstances presented, the jury could have concluded that plaintiffs' driving to the left of center was reasonable in light of the conditions on the narrow roadway.
2. Plaintiff's Negligence — Proximate Cause — Issues of Fact — Jury Determine. In personal injury action concerning accident that occurred as plaintiff was driving along busy narrow roadway and plaintiff's truck emerged from alley, in addition to the question of plaintiff's negligence, an issue of fact existed as to whether plaintiff's conduct was a proximate cause of the accident; thus, both such issues are clearly issues of fact which should have been left to the jury to determine.
3. Failure to See — Plainly Visible — To Apply Rule — Elemental Requirements — Circumstances — Possible — Plaintiff's View Obstructed — Negligence Issue — Fact Question. In regard to the rule that one' failure to see what was plainly visible constitutes negligence, it is elemental that to properly apply such rule the approaching vehicle must be plainly visible and the view of it must be unobstructed; thus, in situation where it is entirely possible that plaintiff's view of defendant's truck emerging from alley was obscured by a camper parked adjacent to the alley, the issue of her negligence remains a fact question for the trier of facts to resolve.
4. Right-of-Way Ordinance — Testimony — Evidence — More Than Sufficient — Defendant's Negligence — Issue of Fact. In personal injury action, the city ordinance which requires driver of a vehicle emerging from an alley to yield the right-of-way to all vehicles approaching on said roadway, coupled with plaintiff's testimony regarding the accident and her mother's testimony on the admission of defendant that he had not seen plaintiff approaching as he emerged from alley, constituted evidence that was more than sufficient to raise an issue of fact as to defendant's negligence that thus should have been submitted to the jury.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Litvak, Schwartz Karsh, P.C., Alan E. Karsh, for plaintiffs-appellants.
Madden Strate, P.C., George J. Strate, for defendant-appellee.
Wanda Sanchez, plaintiff, appeals from a judgment of the trial court dismissing her action for damages resulting from an automobile accident. At the close of plaintiff's evidence, defendant moved for a directed verdict on the grounds that plaintiff had failed to prove a prima facie case of liability against defendant and that her testimony established that she was contributorily negligent as a matter of law. The trial court denied defendant's motion at that time, but when it was renewed at the close of defendant's case, the motion was granted. We reverse.
We note at the outset that in reviewing a motion for directed verdict we must consider the evidence in a light most favorable to the party against whom the motion is directed. "His evidence must be taken as true, every controverted fact must be resolved in his favor, and the strongest inferences reasonably deductible from the most favorable evidence should be indulged in his favor." Gossard v. Watson, 122 Colo. 271, 221 P.2d 353. Furthermore, issues of negligence and contributory negligence are generally matters to be resolved by the trier of facts, and "it is only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one conclusion from them that the question of what constituted reasonable care is ever one of law to be decided by the court." Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250; McQueen v. Robbins, 28 Colo. App. 436, 476 P.2d 57.
Viewing the evidence in the light most favorable to plaintiff, the record shows that the following events occurred. At approximately noon on the date of the accident, plaintiff was proceeding west on East 39th Avenue at a speed of 25 to 30 miles per hour. Both plaintiff and a policeman who investigated the accident testified that the street was narrow and cars were parked solidly on both sides of the street. Children with bicycles were playing on the street corners and several employees of a large, nearby factory were walking along the street during their lunch hour. Plaintiff testified that she drove her automobile slightly to the left to the left of center on the narrow street as a precaution against striking anyone who might emerge from between the parked cars. There was no oncoming traffic in the eastbound lane. Plaintiff did not see defendant's truck until he honked as he was emerging from an alley past a camper that was parked on the street next to the alley. Defendant was attempting to complete a turn into the eastbound lane of East 39th. Plaintiff testified that immediately prior to the accident she was looking straight ahead down the street, having just finished adjusting her rear view mirror. A patrolman testified that the unposted speed limit in the area was 25 miles per hour and that lanes on the street were not marked. The approximate point of impact, which the patrolman ascertained by physical investigation and conversation with the parties, indicated that the left side of plaintiff's vehicle was one and one-half feet left of the center of the street when the collision occurred. Plaintiff's mother testified that shortly after the accident defendant stated, "I never even saw her because of the truck" (referring to the camper parked next to the alley).
In support of the trial court's judgment, defendant argues that plaintiff was not attending to the road in from of her, that she was speeding, and that, in violation of the applicable city ordinance, she was driving to the left of center of the roadway. He further asserts that plaintiff's conduct was clearly the proximate cause of the accident, and that therefore she was contributorily negligent as a matter of law. However, from the record before us, the jury could have concluded that plaintiff was looking straight ahead at the time of the accident, that she was not exceeding the speed limit, and that driving one and one-half feet to the left of center was reasonable in light of the conditions on the narrow roadway.
The Denver Revised Municipal Code provides:
"514.1 Drive on Right Side. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway except as follows:
. . . .
".1-2. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, that any person so doing shall yield the right-of-way to all vehicles traveling the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard . . . . "
Considering the wording of this ordinance, it is not entirely clear that defendant, who was entering the street from the alley, is a member of the class which the ordinance was enacted to protect, particularly in view of Denver Revised Municipal Code 515.3-1 (quoted below). See Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185, modified, 174 Colo. 206, 483 P.2d 385. However, even assuming that plaintiff violated the ordinance and that defendant was a member of the protected class, such violation is not necessarily negligence per se.
[1] Our Supreme Court has held that violation of a state statute requiring drivers to yield at least half of the roadway is not negligence per se. Orth V. Bauer, 163 Colo. 136, 429 P.2d 279; Parrish v. Smith, 102 Colo. 250, 78 P.2d 629. In both of the cited cases the jury was permitted to consider road and weather conditions which may have justified the fact that one of the vehicles was left of center. Driving to the left of center may give rise to a presumption of negligence, but the presumption may be rebutted by evidence showing that the conduct was reasonable under the circumstances. See Drake v. Hodges, 114 Colo. 10, 161 P.2d 338.
[2] In addition to the question of plaintiff's negligence, an issue of fact existed as to whether plaintiff's conduct was a proximate cause of the accident. See Gossard v. Watson, supra; Drake v. Hodges, supra. Thus, whether plaintiff's conduct was reasonable under the circumstances and, if not, whether that conduct was a proximate cause of the accident are clearly issues of fact which should have been left to the jury to determine.
[3] Defendant argues that even if plaintiff were properly observant, her failure to see what was plainly visible, i.e., defendant's truck, constituted negligence. See Clibon v. Wayman, 137 Colo. 495, 327 P.2d 283. However, as stated in Hernandez v. Ratliff, 172 Colo. 129, 470 P.2d 579:
"To properly apply this rule as a matter of law, it is elemental that the approaching vehicle must be plainly visible and that the view of it must be unobstructed. If the evidence on these points is not clear or is disputed, then it remains a fact question for the trier of facts to resolve."
In the case at hand, it is entirely possible that plaintiff's view of defendant's truck was obscured by the camper parked adjacent to the alley.
[4] Defendant further contends that plaintiff failed to establish a prima facie case of liability against him. We disagree. Denver Revised Municipal Code 515.3-1, states:
"The driver of a vehicle emerging from an alley . . . shall yield the right-of-way to all vehicles approaching on said roadway." (emphasis added)
This ordinance did not operate to limit defendant's duty to yield the right-of-way to vehicles properly on the roadway or to vehicles in his lane. Rather, the ordinance required him to yield to " all vehicles." Coupled with this ordinance, plaintiff's testimony regarding the accident and her mother's testimony on the admission of defendant were sufficient to permit an inference that defendant had violated this ordinance when entering the roadway from the alley. The evidence was more than sufficient to raise an issue of fact as to defendant's negligence, and thus this issue should have been submitted to the jury.
The judgment is reversed and cause remanded with directions to grant a new trial.
JUDGE RULAND concurs.
CHIEF JUDGE SILVERSTEIN dissents.