Golden Eagle Dry Goods Co. v. Mockbee

• Citation: 68 Colo. 312,189 P. 850
• Decision Date: 03 May 1920
• Docket Number: 9421.
• Parties: GOLDEN EAGLE DRY GOODS CO. v. MOCKBEE.
• Court: Supreme Court of Colorado

189 P. 850

68 Colo. 312

GOLDEN EAGLE DRY GOODS CO. v. MOCKBEE.

No. 9421.

Supreme Court of Colorado, En Banc.

May 3, 1920

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

Action by Kate M. Mockbee against the Golden Eagle Dry Goods Company. There was a judgment for plaintiff, and defendant brings error.

Reversed and new trial granted.

Allen J., dissenting.

Bardwell, Hecox, McComb & Strong, of Denver, for plaintiff in error.

Gillette & Clark, of Denver, for defendant in error.

DENISON J.

Defendant in error had a judgment against plaintiff in error for injuries sustained in an automobile collision caused by the alleged negligence of defendant's servant.

Plaintiff was driving an automobile southward on South University street in Denver. As she was crossing the intersection of East Evans street a motor delivery car of the defendant driven eastward by defendant's servant, collided with plaintiff's car and injured her.

The complaint alleged that the defendant's car was driven in a careless, negligent, and reckless manner and at an excessive and dangerous rate of speed, whereby the collision occurred.

The answer denied the negligence and excessive speed, and charged the plaintiff with excessive speed, and with taking the right of way from defendant.

Section 1974 of Denver Municipal Code provides that----

'Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from the right. * * *'

The court instructed the jury, among other things, as follows:

'If both the plaintiff and the defendant's driver reached the intersection of the two streets at the same time, or if the defendant's driver reached the intersection first, the defendant's driver had the right of way.

'If the plaintiff reached the intersection of the two streets first, the plaintiff had the right of way. * * *

'It was the plaintiff's duty in approaching the intersection, to look to the right to see whether any vehicle was approaching the intersection from that direction, and to so keep her automobile under control as to enable her to accord the right of way to the defendant's driver, if he reached the intersection before the plaintiff reached the intersection, or at the same time that the plaintiff reached it.

'It was the duty of the defendant's driver, in approaching the intersection, to look to the left to see whether any vehicle was approaching the intersection from that direction, and to so keep his automobile under control as to enable him to accord the right of way to the plaintiff, if she reached the intersection before he reached the intersection.'

This instruction is erroneous because it repeals the ordinance and because it is impracticable.

It repeals the ordinance, or rather inverts it, because, since the rules of the road in cities require every vehicle to travel on the right-hand side, the right-hand car, when both are at or near the border of the...