Boyd v. Close

• Decision Date: 27 June 1927
• Docket Number: 11734.
• Citation: 257 P. 1079,82 Colo. 150
• Parties: BOYD v. CLOSE et al.
• Court: Colorado Supreme Court

257 P. 1079

82 Colo. 150

BOYD v. CLOSE et al.

No. 11734.

Supreme Court of Colorado

June 27, 1927

Rehearing Denied July 22, 1927.

Department 2.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by Russell Boyd against E. J. Close and others. Judgment for defendants, and plaintiff brings error.

Reversed and remanded, with directions.

Charles H. Haines, Nathan I. Golden, and David W Oyler, all of Denver, for plaintiff in error.

Francis J. Knauss, of Denver, for defendant in error E. J. Close.

Fred Holland, D. L. Webb and H. Berman, all of Denver, for defendants in error Dennis J. Phillips and Mrs. Joseph W Phillips.

BURKE C.J.

Plaintiff in error brought this action against defendants in error for damages occasioned by an automobile collision. The parties are hereinafter referred to as in the trial court, or by name.

At the close of plaintiff's evidence the court sustained Mrs. Phillip's motion for a nonsuit as to her. At the close of all the evidence the court overruled plaintiff's motion to amend his complaint to conform to the proof by alleging a joint enterprise, and sustained the motions of Close and Phillips for directed verdicts as to them. Motion for new trial was overruled, and to review the judgment thereupon entered against plaintiff he brings error.

Phillips, 19 years old, and Close, 24, are cousins, and Mrs. Phillips is the mother of the former. Her husband, the father of Dennis, died December 28, 1925. He left a willnaming his wife as sole executrix. She continued to occupy the family residence, act as head of the family (consisting of three children, including Dennis, all residing with her), and was in possession of her late husband's personal effects, including the family car. This car had usually been driven by Dennis with the consent and approval of his father and mother. On the evening of January 2, 1926, with the consent and approval of his mother, Dennis went in this car to visit his cousin at the hotel where he stayed, and from there the boys attended a dance near Denver. Dennis drove the car out, but on the return trip Close, with the consent and approval of Dennis, was at the wheel. About 2 a. m. they were inside the city, driving north on Broadway, and approaching a point where that street is intersected by two others. At the same time Boyd in his car was on the same street driving south, and approaching the same point, with the intention of turning left at the intersection. Each car, as was proper, was on the left of the other and on the right-hand side of Broadway. When Boyd made the turn, he came directly in front of defendant's car and the collision here in question, with the personal injury and property damage complained of, resulted.

The Denver ordinances forbid intoxicated persons to drive automobiles, direct that the driver on the left shall yield the right of way, and fix the maximum speed south of this intersection at 20 miles per hour, and north of it at 15.

When Boyd turned left, the Phillips car was approaching him from the right, and, if otherwise within the law, had first claim to the road. That they were on the same street is immaterial. It is the position of the cars as their paths cross, not the direction of a highway, which requires the establishment of a rule and determines its applicability. The trial court so held. Counsel for Boyd dispute this point, but we think it too clear to admit of argument. If cars approach each other on a straight track, each on the right-hand side of the road, and neither turn, no question of precedence can arise. But he who turns, thus transferring the other from his left to his right, must yield. Otherwise, no rule governs, and 'the race is to the swift and the battle to the strong.'

Since Boyd did not yield, the burden is on him to excuse his failure. This he maintains he did, by pleading and proof, and this is his case, so made. He was well within the maximum speed limit, was exercising reasonable care, and gave the proper signal. As he started to turn, he saw the approaching lights of the Phillips car 100 yards away, but had no reason to add did not believe that it was exceeding the speed limit. He was handicapped by the night, the lights, the location of the cars, and falling snow. Defendants' car was in fact approaching at 45 miles an hour, its driver was drunk and reckless he did not signal, slow down, turn, or use his brakes. He covered the intervening 300 feet while plaintiff was going 90 feet. On this case plaintiff claims the right to go to the jury. That it was contradicted is, of course, immaterial. Defendants answer that they had the right of way; that no appearance could justify plaintiff's conclusion that the crossing was safe; that the mere fact that the cars came together proves the likelihood of a collision; that Boyd's failure to yield was contributory negligence, which, as a matter of law, was the proximate cause of the disaster. In support of this contention they cite Livingston v. Barney, 62 Colo. 528, 163 P. 863; Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 P. 850; Rosenbaum et al. v. Riggs, 75 Colo. 408, 225 P. 832; St. Mary's Academy v. Newhagen, 77 Colo. 471, 238 P. 21. These cases do not...