Opinion
May 15, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
James B. Radetsky, David A. Fogel, Denver, for plaintiffs-appellants.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendant-appellee.
DWYER, Judge.
Plaintiff Martin Dean Sigrist brought this action to recover damages for personal injuries he sustained when a motorcycle he was driving was struck by a pickup truck driven by defendant, Orin William Love. His parents, Ruby Griffin and Waymon Griffin, sought recovery for their damages. Trial was to a jury which returned a verdict in favor of the defendant. Plaintiffs have appealed the judgment entered on the verdict. We reverse.
The collision occurred April 15, 1970, in Lakewood, Colorado, hear the intersection of Carr Street and 16th Avenue. Carr Street is a north-south street and 16th Avenue is an east-west street which ends at Carr Street. A row of shops and a parking area is located on the west side of Carr Street and extends for some distance north and south of the intersection. There is no curb separating the parking area from the west edge of Carr. Carr is a two-way street approximately 37 feet in width. On the day of the accident, the northbound lane of Carr was partially obstructed by a construction barricade extending into the street approximately 12 feet from the east curb of Carr on a line with the south curb of 16th Avenue. The northbound traffic used a lane around the barricades to the left and southbound traffic used a lane further to the left. The lane used by the southbound traffic extended beyond the curb line and over a portion of the parking area.
At approximately 9:00 P.M., on the day of the accident, the defendant, Orin William Love, was driving his pickup truck north on Carr Street. His destination was a motorcycle shop located in the row of shops west of Carr. In order to get to the parking area in front of the motorcycle shop, defendant made a left turn across the southbound lane, and struck plaintiff Martin Dean Sigrist, who was driving a motorcycle south on Carr Street.
At the close of the evidence, the trial court properly ruled that the evidence presented issues of negligence and contributory negligence and submitted the case to the jury.
Plaintiffs' principal contention on appeal is that the trial court erred in refusing to submit to the jury their tendered instruction No. 1, which states as follows:
'At the time of the accident in question in this case, the following State Statute was in full force and effect:
The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.
A violation of the above statute constitutes negligence as is elsewhere defined in these instructions.
If you find such a violation, you may only consider it if you also find that it was a proximate cause of the accident.'
This instruction is based on 1965 Perm.Supp., C.R.S1963, 13--5--52 which as provided by 1965 Perm.Supp., C.R.S.1963, 13--5--1(2)(a), is applicable to streets and highways.
The trial court refused to instruct on the right-of-way statute because the collision occurred on private property. Although the point of impact was 20 feet inside the parking area on private property, the conduct of the parties which caused the collision occurred on the public street. The defendant was proceeding north on a public street and the plaintiff was approaching him from the opposite direction on the same street. The right-of-way statute applied to the operation of the vehicles of the parties even though the actual collision of the vehicles occurred on private property.
Where there is evidence that a traffic statute has been violated, and that the violation caused or contributed to the happening of an accident, the jury should be instructed on the statute. Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590. Since there is evidence that the defendant violated the right-of-way statute, the court's refusal to instruct on the statute was reversible error.
Plaintiffs also contend that the court erred in refusing to submit to the jury Colorado Jury Instructions 11:8 concerning the right to assume that others will obey the law. This instruction states:
'One has the right to assume, in the absence of reasonable grounds to think otherwise, that other persons will obey applicable laws and regulations and one is not negligent in failing to anticipate that the other persons may violate such laws and regulations.'
In view of our holding that the right-of-way statute is applicable, this instruction should be given on retrial of the case. This instruction was approved in Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733. The Notes on Use of this instruction, prepared by the Colorado Supreme Court Committee on Jury Instructions, state that the instruction is primarily for use in a case where one person, having violated a law or regulation, thereby causing another's injury, sets up an affirmative defense of contributory negligence on the theory that the other person should have anticipated the violation. The instruction is necessary in the present case because the jury was required to resolve the question of contributory negligence, and the jury should have been instructed on the circumstance in which plaintiff could assume that defendant would yield the right-of-way.
Plaintiffs' remaining claims of error with respect to the instruction are without merit.
Judgment reversed and cause remanded for a new trial.
SILVERSTEIN, C.J., and COYTE, J., concur.