Knifer v. De Julio

• Decision Date: 26 January 1931
• Docket Number: 12419.
• Citation: 88 Colo. 316,295 P. 916
• Parties: KNIFER v. DE JULIO et al.
• Court: Colorado Supreme Court

295 P. 916

88 Colo. 316

KNIFER v. DE JULIO et al.

No. 12419.

Supreme Court of Colorado

January 26, 1931

Rehearing Denied Feb. 16, 1931.

Error to District Court, Montrose County; Straud M. Logan, Judge.

Action by J. C. Knifer against Oris De Julio, a minor, and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

L. C Kinikin, of Montrose, for plaintiff in error.

Moynihan Hughes & Knous, of Montrose, for defendants in error.

MOORE, J.

In an authomobile damage suit, defendants in error, defendants below, had judgment upon a verdict directed by the district court which plaintiff in error, plaintiff below, here seeks to review.

The record discloses that plaintiff was driving his Ford automobile south on the Montrose-Ouray highway. Defendant Oris De Julio, a minor, was driving a Dodge car owned by his father, east on the Dave Wood road which terminated at the interestion of the two roads, intending to travel northward to Montrose on the first mentioned road. Plaintiff testified that he saw defendants' car approaching from his right approximately 150 feet from said intersection at a time when he was 60 feet therefrom, defendants' car then being driven at an excessive rate of speed, and on the wrong and north side of the Dave Wood road, plaintiff's car being driven at the rate of 15 miles per hour. Plaintiff further testified that his brakes were in good condition, and that he had ample time to stop, but, instead of so doing, he turned to the left and on the wrong side of the Montrose-Ouray road, where the accident occurred at a point just south of the northerly line of the Dave Wood road extended and on the extreme easterly side of the Montrose-Ouray highway. Under these circumstances, the court held the plaintiff guilty of contributory negligence as a matter of law, and directed the verdict which is here questioned.

The plaintiff by his own testimony was clearly guilty of contributory negligence, and, the facts being undisputed, it became the duty of the court to so hold as a matter of law. Fairmount Cemetery Ass'n v. Davis, 4 Colo.App. 570, 36 P 911; Livingston v. Barney, 62 Colo. 528, 163 P. 863; Golden Eagle Co. v. Mockbee, 68 Colo. 312, 189 P. 850; Rosenbaum v. Riggs, 75 Colo. 408, 225 P. 832; Bartlett v. Hammond, 76 Colo. 171, 230 P. 109; Hicks v. Cramer, 85 Colo. 409, 277 P. 299.

St. Mary's Academy v. Newhagen, 77 Colo. 471, 238 P. 21, is particularly applicable to the facts here presented. In that case, the plaintiff, Newhagen, was driving north on a state highway; defendant's car, traveling westward at an excessive rate of speed, had the right of way; plaintiff saw defendant's car when it was three or four hundred feet from the intersection and the plaintiff's car was approximately 100 feet therefrom. Plaintiff continued to drive toward the intersection where the collision ensued. The court states at page 472 of 77 Colo. 238 P. 21:

'It is claimed that she was guilty of contributory negligence, as a matter of law. The claim is right. In Livingston v. Barney, 62 Colo. 528, 163 P. 863, we held that under similar circumstances the plaintiff was negligent because he failed to look. In

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