Gomez v. Black, 72--164
| Decision Date | 05 June 1973 |
| Docket Number | No. 72--164,72--164 |
| Citation | 32 Colo.App. 332,511 P.2d 531 |
| Parties | Raymond GOMEZ, by his natural parent and next best friend, Esther Rose Camacho et al., Plaintiffs-Appellees, v. Harold Osburn BLACK, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Frickey, Cairns & Wylder, Richard H. Cairns, Denver, for plaintiff-appellee Jose Rudolph Manzanares.
Gerash, Gerash & Davis, Michael A. Davis, Denver, for plaintiffs-appellees Raymond Gomez and Esther Rose Camacho.
Yegge, Hall & Evans, Wesley H. Doan, Denver, for defendant-appellant.
This controversy arises out of an automobile-bicycle collision. Plaintiffs, a bicyclist and his passenger, were traveling downhill in an easterly direction on a mountain highway. Defendant, also proceeding in an easterly direction, came upon plaintiffs from the rear at a point in the road from which he could see them ahead of him for approximately one-quarter of a mile. It is undisputed that defendant's vehicle struck the bicycle from the rear, causing the alleged injuries.
The evidence established that the bicycle was in the eastbound lane. The highway, at the point of impact, was divided by a broken white line, and a no-passing yellow line controlled traffic traveling east. The speed limit in this particular stretch of highway is 45 m.p.h. Defendant's speed, prior to the impact, was estimated by the investigating officer to be in the neighborhood of 50 m.p.h.
The parties are not in agreement as to what transpired immediately prior to and at the time of the impact. Plaintiffs offered evidence to the effect that they were well within the confines of the eastbound lane and were not aware of the presence of defendant's vehicle until a split second before the impact. They testified that defendant made no attempt to avoid them; neither swerving to the left nor applying his brakes until after the impact. Defendant countered, contending that as he approached the plaintiffs, he noted that they were riding down the middle of the road, weaving in and out of the two traffic lanes. He maintains that he sounded his horn, with no apparent response from plaintiffs, slowed his car, and steered to the left into the westbound lane attempting to pass the plaintiffs. As he drew abreast of them, he contends that the driver of the bicycle turned his head to look behind him and suddenly swerved the bicycle directly into the path of the defendant.
On this disputed set of facts, the matter was submitted to the jury with instructions on negligence, contributory negligence, and last clear chance. The jury returned a verdict in favor of plaintiffs and judgment was entered thereon. Defendant appeals. We affirm with regard to liability, and reverse with regard to damages.
Defendant's first contention is that this was an improper case for application of the last clear chance doctrine. Initially, we note that there was evidence in the record from which the jury could conclude that defendant was negligent, and that plaintiffs were contributorily negligent. This being so, we must concern ourselves only with whether the facts would support an instruction to the jury on last clear chance. Independent Lumber Co. v. Leatherwood, 102 Colo. 460, 79 P.2d 1052. We conclude that they would.
Defendant's argument has essentially two bases. He first contends, relying on Werner v. Schrader, 127 Colo. 523, 258 P.2d 766, that plaintiffs were not in a position of inextricable peril, and that, therefore, defendant did not have a better opportunity than plaintiffs to avoid the accident. He also contends, basing his argument on Dwinelle v. Union Pacific RR. Co., 104 Colo. 545, 92 P.2d 741, that since plaintiffs' negligence was concurrent with, not antecedent to his own negligence, he did not have a clear chance to avoid the accident.
First, we find no merit to the argument that plaintiffs were not in a position of peril from which they could not extricate themselves. From the record before us, we conclude that the jury would have determined that plaintiffs were unaware of defendant; that unless defendant took evasive actions, plaintiffs would be injured; and that defendant was aware of this position of peril. This being so, they could properly conclude that defendant had the last chance. Werner v. Schrader, Supra.
With regard to whether it was a clear chance, defendant argues that plaintiffs swerved into him in the last instant and any...
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