Summary
In Southworth v. Griffith, (1971) Colo. App., 489 P.2d 1068, the plaintiff on his motorcycle and the defendants in their car approached each other on the same street at night.
Summary of this case from Fankboner v. SchubertOpinion
Rehearing Denied Sept. 21, 1971.
Page 1069
Samuel Berman, Denver, for plaintiff-appellant.
Wormwood, Wolvington, Renner & Dosh, Jack Kent Anderson, Denver, for defendants-appellees.
PIERCE, Judge.
The parties appear here as they appeared at trial and will be referred to by their trial court designations or by name. Plaintiff Southworth here appeals from an adverse judgment in his action for damages resulting from a collision between the motorcycle he was riding and defendants' automobile.
The disposition of this matter below involved two separate trials. In the first trial, motion for directed verdict in favor of plaintiff on the issue of liability was granted and the jury thereafter assessed damages in the amount of $9,680. A motion for new trial filed by defendants was subsequently granted by the court. Upon retrial of the matter, the case went to the jury on all issues and a verdict was rendered in favor of defendants. Plaintiff's motion for new trial was denied.
Testimony adduced at both trials was substantially the same. The collision occurred at approximately 10:15 p.m., September 20, 1968, in Denver. Plaintiff testified that, after stopping at a Seven-Eleven Store on 84th Avenue, he proceeded west down that two-way thoroughfare on his motorcycle towards the intersection of 84th Avenue and Huron Street. The defendants' car, with Mr. Griffith at the wheel, was going in the opposite direction on 84th in the left-turn lane, commencing a turn onto Huron Street. Both parties had the green light. Plaintiff testified that he was driving his motorcycle at a speed of approximately 20 miles per hour; that he first saw the defendants' vehicle when he was approximately 50 feet from the point of impact; and that he was in the intersection before he realized defendant was not going to stop. He stated that he slowed as he approached the intersection. Defendant Victor Griffith testified that as he approached the intersection he was looking straight ahead to observe any approaching traffic coming from the opposite direction prior to making his turn. He saw neither any approaching vehicles nor lights of approaching vehicles and proceeded to make his turn at about five or ten miles per hour. His first observation of the plaintiff was a white streak, which he presumed to be the helmet of the motorcyclist, instantaneously before impact. Mrs. Griffith, a passenger in his car, also stated that as they approached the intersection she was looking in the direction from which the motorcyclist came; that she saw no lights as they started into their left turn; and that her first observation of plaintiff was a white streak immediately before the collision.
Plaintiff assigns as error the trial court's submission of three instructions to the jury which he asserts were without a factual basis. The first instruction stated the law of contributory negligence. The second was to the effect that plaintiff could have lost his right-of-way for failure to exercise reasonable care and operate his motor vehicle with due regard for existing conditions. The third instruction apprised the jury of a Colorado statute requiring plaintiff to have his headlights on at the time of night when the accident occurred.
We are of the opinion, however, that the jury was properly instructed upon defendants' theory of the case and that the evidence clearly supported those instructions.
In regard to the instruction on contributory negligence, evidence indicated that plaintiff slowed as he approached the intersection, continuing to watch defendants' car as it proceeded to make a left turn, yet plaintiff did not stop or was unable to do so. Testimony also indicated that he had some difficulty controlling his motorcycle prior to the collision. There is no question that this accident occurred at a time when lights were required by C.R.S. 1963, 13--5--86, and that defendants had a right to rely on the premise that other vehicles on the street would be in obedience of this law. Gallagher Transportation Co. v. Giggey, 101 Colo. 116, 71 P.2d 1039. Where both defendants looked in the direction from which plaintiff's motorcycle was coming and in fact did not see any headlights, the inference that plaintiff did not have his headlights on is one which a jury could legitimately draw and this inference adequately supports the contributory negligence and headlight requirement instructions submitted to the jury. Eagan v. Maiselson, 142 Colo. 233, 350 P.2d 567. Evidence regarding the question of whether plaintiff lost his right-of-way for failure to exercise reasonable care under existing conditions was also sufficient to present a question of fact for determination by the jury. Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862.
Plaintiff's next contention is that the trial court erred in failing to direct a verdict in his favor. We disagree. The criterion by which evidence must be judged upon a directed verdict is set forth in Parker v. City & County of Denver, 128 Colo. 355, 262 P.2d 553, wherein the Colorado Supreme Court stated:
'In this jurisdiction following a long and unbroken line of decisions, it has been held by our court that where the evidence on material facts is in conflict, or in the event there are undisputed facts upon which reasonable and fairminded men may form different opinions and draw different conclusions or inferences, then the question of negligence is one for determination by a jury.'
Applying this standard to the case at hand, where a substantial amount of conflicting and disputed evidence was presented, the trial court properly denied plaintiff's motion for directed verdict.
We find plaintiff's contention that a new trial motion was erroneously granted in the original action is without merit. The record of the first trial, being substantially the same as that of the second, clearly presents a conflict of evidence in regard to the issues of liability discussed above, and the original directed verdict was improper. Therefore, the granting of defendants' motion for new trial was proper and will not be disturbed upon review. Gomez v. Miller, 170 Colo. 106, 459 P.2d 126.
We find plaintiff's further assignments of error to be without merit.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.