Riley, Kenneth V.

English

University of Denver

Denver Law Review Volume 6 Issue 9 Article 3 July 2021 Automobile Collisions at Intersections Kenneth V. Riley Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Kenneth V. Riley, Automobile Collisions at Intersections, 6 Dicta 3 (1928-1929). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. DICTAVol. VI JULY, 1929 No. 9AUTOMOBILE COLLISIONS ATINTERSECTIONSBy Kenneth V. RileyJUDGE DENISON pointed out in a recent article in Dictathat in these modern times a lawyer is paid more to be aprophet than an orator. It is obvious to every lawyer thatan understanding of the chain of antecedent legal opinionsbearing upon the issues involved, is essential to an intelligentprophecy upon the outcome of any contemplated legal con-troversy.I like to think of these cases as landmarks or blazes onthe trees along the trail through the deep woods of legal spec-ulation to a correct conclusion. A traveler strikes out througha strange forest to reach a certain destination many miles away.If some woodsman has gone before and left his tell-tale blazeupon a tree from time to time along the trail, and the travelleris heedful in following the blazes, he is fairly certain to reachhis destination. But if he fails to heed them, he will becomelost. Just so, the lawyer must traverse the forest of legal -spec-ulation. He has knowledge of a few fundamental legal prin-ciples to help him. But if he does not follow the trail markedby the legal precedents, he is very likely to lose his way andfail to reach the proper destination.The case-law on most subjects reaches back for manyyears, even, centuries, into the past. But automobiles are acomparatively modern invention, and consequently automo-bile law, which in many respects had no counterpart in ante-cedent law, is also of fairly recent origin. In the days of horsedrawn vehicles there were no collisions at street intersectionsresulting in law-suits. But now-a-days, such collisions occurevery day between automobiles. This has resulted and con-tinues to result in a vast amount of litigation. Our State Su-DICTApreme Court in the short space of a dozen years, has built upa system of case-law on this subject, which, if studied and un-derstood, will greatly assist the lawyer in predicting the out-come of contemplated legal controversies.The first automobile intersection case which reached theSupreme Court of this State was Livingston v. Barney, 62Colo. 528, decided in 1917. In that case Livingston was rid-ing a motorcycle west on Twenty-sixth Avenue approachingits intersection with Downing Street in Denver. Barney wasdriving south on Downing Street, towards Twenty-sixth Ave-nue. Livingston entered the intersection and at some pointtherein collided with Barney's automobile. It was betweensix and seven o'clock in the evening and quite dark. Barney'scar had side lamps lighted but no headlights. Livingstonsued Barney and testified at the trial that he didn't look tothe right when he entered the intersection, "but that he lookedstraight ahead without turning either to the right or left".The trial judge granted defendant a non-suit on the groundthat under the municipal ordinance granting the right of wayto the vehicle on the right, it was the positive duty of plain-tiff to look to the right before he crossed the intersection. TheSupreme Court affirmed the judgment, making the followinginteresting comment: (p. 532)"From the testimony which plaintiff himself gave it appears that on en-tering Downing Street he failed to look either way, and it also appears there-from that his view was unobstructed. Had his vision been in any manner cutoff, or interfered with, or had he looked or otherwise attempted to avoid in-jury, then the question might have been one of fact for the jury. But he failedtotally to observe, by not looking to the right, the duty imposed upon him bypositive law, as set forth in the ordinance. In addition he violated the lawof self preservation founded on instinct, by which anyone driving on a pubicstreet is required at all times to use the faculties with which nature has en-dowed him to avoid injury."This case settled that a driver who fails to look to the rightat an intersection cannot recover. But as will be seen, it leftother important questions undetermined.At that time I think it was quite generally the opinion oflawyers and laymen alike that despite the right of way ruleand ordinance, the first car into the intersection had the rightof way. In Golden Eagle Go. v. Mockbee (1920) 68 Colo.DICTA312, an action arising out of an automobile collision at a Den-ver street intersection, Judge Butler, now on the SupremeBench, instructed the jury in accordance with this prevalentunderstanding. In logical accord with this view the judgefurther instructed the jury that: (p. 314)"It was the duty of defendant's driver, in approaching the intersection,to look to the left to see whether any vehicle was approaching the intersectionfrom that direction, and to so keep his car under control as to enable him toaccord the right of way to the plaintiff, if she should reach the intersectionbefore he reached the intersection."On appeal the Supreme Court, speaking through Justice Den-ison, said:"This instruction is erroneous, because it repeals the ordinance and be-cause it is impracticable."The Court succinctly explained its position as follows: (p.314)"It repeals the ordinance or rather inverts it, because since the rules ofthe road in cities require every vehicle to travel on the right hand side, theright hand car, when both are at or near the border of the street intersection,will be much nearer the intersection of the tracks of the two cars, the point ofpossible collision, than the left hand car will be; it follows that whenever thetwo cars are approaching at equal or nearly equal distances. from that point(which is the only time when collision is likely) the right hand car must yieldbecause the left hand car will reach the .street intersection first; thus the rightof way in practically all cases, except where no collision could occur anyway,is transferred from the right to the left."The court deemed the instruction impracticable because inmany cases in which collision is likely, if the drivers wait tosee which will reach the intersection first, it will be too late toconsider the right of way; and because to require every driverto look both right and left to see whether any of the cars oneither side will touch the street intersection before or withhim is impracticable. The court announced the correct ruleto be as follows:"We think the right rule is that it is the duty of every driver, whenapproaching a street intersection, to use reasonable care to see whether thereis likelihood of collision with any car approaching from the right, and, if thereis, to yeld to it the right of way and to keep his car under such control thathe can do so. Livingston v. Barney, 62 Colo. 528, 163 Pac. 863; Colo. etc.Ry. Co., v. Cohen, 66 Colo. 149, 180 Pac. 307. The court below was clearlyright however in warning the jury that the one having the right of way is notDICTAabsolved from reasonable care, and we think that the driver who has not theright of way is entitled to assume that the car on the right is not approachingat a negligent rate."The above stated rule seems plain enough and yet lawyersand judges have found perplexities in, its application. Forinstance, when if ever, is a driver justified in proceeding acrossan intersection in front of a car approaching on his right?Again, under what circumstances can a driver who has notthe right of way assume that the car on his right is not ap-proaching at a negligent rate?Rosenbaum v. Riggs, 75 Colo. 408, decided in 1924,throws further light on the last stated question. This casearose out of an intersection collision which occurred in theCity of Sterling. Plaintiff Riggs was on the left. He testi-fied that he had reached the center of a fifty foot street, goingnot to exceed ten miles per hour, and could have stopped with-in five or six feet, when he saw defendant's car to his rightabout one hundred feet back, approaching at about forty milesper hour. He knew it was coming fast, but thought he hadno reason to stop. The case went to the jury and plaintiff gotjudgment. Defendants appealed. The Supreme Court re-versed the judgment. That court pointed out that under plain-tiff's testimony, "it was very apparent that if neither one ofthem stopped, or slackened speed, there would be a collision".(p. 410.) It continued: (p. 410)"The defendant, being at the right of the plaintiff, had the right of way,and it was plaintiff's duty to recognize that, having the right of way, she mightnot slacken speed. Under the ordinance he should have given her the rightof way, and decreased his speed so that she could pass the point of intersectionin safety. It appears from his evidence that he assumed that, because he waswell towards the center line of the street, he had the right of way, thus, asthis court said in Golden Eagle Co. v. Mockbee, 68 Colo. 312, 189 Pac. 850,inverting the procedure prescribed by the ordinance."The court then referred to Livingston v. Barney, supra,and held that the plaintiff in that case, who failed to look, wasno more negligent than the plaintiff in this case, "who knew ofthe approach of the defendant's car, and is presumed to haveknown that it had the right of way, and yet took a chance ofgetting across in advance of the other car". (p. 411)In concluding its opinion the court said: (p. 411)DICTA"Under the authority of the above cases we hold that the court erred inrefusing to give instruction No. 2, requested by defendant, which was that,'It was the duty of the plaintiff to look to the right, and the evidence is thatif he had so looked he would have seen the car in time to have stopped, and ifhe saw defendant's car in time to stop but neglected to do so, he was guilty ofcontributory negligence and therefore cannot recover'."The above was a case where a plaintiff saw and appreciatedthe speed of the car on his right, which fhct was stressed in theopinion. Yet in view of some of the language in the opinion,and especially in view of the instruction approved therein, thequestion arose whether there ever could be an intersection col-lision in which the driver on the left could recover.This question was touched upon but left unanswered inthe next case, St. Mary's Academy v. Newhagen, 77 Colo. 471,decided in 1925. The car of plaintiff Newhagen, coming intoDenver on the Littleton paved road, was struck by the def end-ant's car coming from the right at a speed of thirty or fortymiles an hour-a negligent rate. Plaintiff's car was proceed-ing at twelve to fifteen miles an hour, and the driver saw de-fendant's car when she was about a hundred feet from theintersection and recognized its speed, yet she shifted her gazeto the left and drove into the intersection without lookingagain to the right. Plaintiff sued defendant for damages re-sulting from the ensuing collision and was permitted to re-cover in the lower court. The Supreme Court reversed thejudgment, and held the plaintiff's driver guilty of negligenceas a matterof law because she failed to accord the right of wayto defendant's car coming from the right, though she saw andappreciated that it was approaching at a negligent rate. Thecourt in commenting on the Golden Eagle case supra, said:(pages 472-473)"We there suggested that the driver who has not the right of way isentitled to assume that the car on his right is not approaching at a negligentrate. That suggestion has been held to be the law in Grant v. Marshall (Del.Super.) 121 Atl. 664; but the question before us now is whether the plaintiff,having looked to the right and seen the defendant's car, and having seen thatit was approaching at a negligent rate, has the right to assume that it- Villslow down and approach the intersection at a careful rate and upon that as-sumption pay no further attention to it. We cannot assent to this proposi-tion."It is interesting to note that the opinion in this, as in theearlier decisions of our Supreme Court, cites and relies uponDICTAthe preceding Colorado cases, whereas the doctrine of the onlyforeign case referred to is ignored. It is also interesting toobserve that even after the above decision was handed down,lawyers were still puzzled as to when, if ever, a driver on theleft could recover, if he had looked and had seen the car onhis right approaching at a speed which, in reality, was exces-sive, but which he claimed not to have recognized as such.Then came the decision in Boyd v. Close, 82 Colo. 150,handed down in 1927, which seemed to add to the perplexity.In that case the plaintiff was non-suited by the trial judge.His evidence disclosed that defendants were driving north onBroadway in Denver in a drunken condition at a highly ex-cessive speed at two o'clock in the morning. Plaintiff wasproceeding south on Broadway at a lawful speed and in theexercise of due care. He turned to the left across Broadwayin front of defendant's car. Then, to quote from the opinion:(p. 153)"As he started to turn he saw the approaching lights of the Phillips(defendant's) car 100 yards away but had no reason to, and did not believethat it was exceeding the speed limit. He was handicapped by the night, thelights, the location of the cars, and falling snow. Defendant's car was in factapproaching at 45 miles an hour, its driver was drunk and reckless, he did notsignal, slow down, turn or use his brakes."The Supreme Court reversed the judgment and remanded thecase for submission of the issue of contributory negligence toa jury.The court first distinguished the preceding cases abovenoted and then announced its ruling in the following emphaticlanguage: (p. 154)"We are now asked to fix responsibility in every case of automobilecrossing collision in favor of the car having the right of way under the strictprovisions of statute, ordinance, or rule of the road, notwithstanding drunk-enness, gross negligence and excessive speed, and notwithstanding every rea-sonable precaution exercised by the other under circumstances which the firstdriver knew, or should have known, would in all probability prove ineffectual;to outlaw every left hand driver and give carte blanche to every right handdriver to run him down. The mere statement of the proposition is its ownrefutation. We know of no court that has ever countenanced it and we ex-pressly repudiate it."The court finally stated that whether the plaintiff should havenoted the excessive speed of the defendant's car was a questionof fact for the jury.DICTAAt this point lawyers and trial judges alike were dividedinto three groups with respect to their opinions on this sub-ject. One group contended that the Boyd case overruled thepreceding cases (though obviously it did not), and that thence-forth in every trial the plaintiff on the left, who had looked tothe right was privileged to go to the jury on the question ofcontributory negligence. The second group held that when-ever the plaintiff testified that he had looked to the right andhad not recognized that the approaching car was coming atan unlawful speed, such plaintiff had a right to go to the juryon the question of contributory negligence. The third groupcontended that in the absence of special circumstances, as inthe Boyd case, which might justify the plaintiff in misjudgingthe speed, the plaintiff was bound at his peril to see and recog-nize that the car on the right was coming at an excessive speed.The last case on the subject was handed down in Marchof this year. In the opinion in that case, Kracaw v. Micheletti,et al., Colo. 276 (p. 333), the court states the facts as follows:(p. 334)"The 'accident occurred in broad day light. The undisputed evidencediscloses that defendant, having the right of way, was driving excessively fast;that plaintiff was traveling at a moderate speed; that when she reached a pointabout fifteen feet from the easterly curb line of Pearl Street, she saw defend-ant's car approaching about two hundred feet distant; that she continued towatch defendant's car, but could not tell its speed; that thinking she had timeto cross ahead of it, she failed to yield the right of way to defendant and thecollision ensued."The court held the plaintiff guilty of contributory neg-ligence as a matter of law, saying: (p. 334)"No reasonably prudent person in plaintiff's position would have failedto recognize the fact that defendant's car was approaching at an excessive andnegligent rate of speed. Plaintiff cannot be heard to say that she failed to recog-nize the speed of defendant's automobile."This opinion appears to vindicate the opinion of the thirdgroup mentioned above.One should not rashly assert that these cases settle thelegal questions arising from automobile collisions at inter-sections, in view of the myriad possibilities of variations infacts. But it can be said again in conclusion that a study ofthem should assist the practitioner materially in acquiring skillas a legal prophet.

Automobile Collisions at Intersections

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Automobile Collisions at Intersections

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