Markley v. Hilkey Bros., 15355.
| Decision Date | 18 June 1945 |
| Docket Number | 15355. |
| Citation | 113 Colo. 562,160 P.2d 394 |
| Parties | MARKLEY v. HILKEY BROS. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; George A Luxford, Judge.
Action by Hilkey Bros., a partnership, against S. A. Markley, doing business as M. and M. Truck Company, to recover damages arising out of a collision between trucks wherein defendant filed a cross-complaint. To review a judgment for plaintiff on the complaint and against defendant on the cross-complaint, defendant brings error.
Affirmed.
Wolvington & Wormwood, of Denver, for plaintiff in error.
John W Shireman, of Denver, for defendant in error.
Complaint and cross-complaint for damages arising out of a collision between trucks at the intersection of West Eleventh street and Larimer street, Denver. Each of the parties alleged the other's negligence, denying his own, and plaintiff in error, defendant below, alleged contributory negligence on the part of defendant in error, plaintiff below, which was denied. Plaintiff alleged violations by defendant of certain of the Denver traffic ordinances. The trial court found in favor of plaintiff on its complaint and against defendant on his cross-complaint, and consistently, judgment not challenged as to amount, was given in favor of plaintiff.
Only the drivers of the trucks testified at the trial, and their testimony, plus plaintiff's exhibit 'A'--a copy of the traffic ordinances of Denver--constituted the evidence in the case. The witnesses agreed that the collision occurred on Denver streets crossing at right angles, as day was begining to break the morning of October 13, 1942; that plaintiff's truck was traveling northeasterly on Larimer street, and defendant's truck southeasterly on West Eleventh street, which, for the purposes of application, means that plaintiff was approaching the intersection on defendant's right and defendant was approaching on plaintiff's left; that the trucks were properly lighted and each driver saw and noted the approach of the other. Plaintiff's driver testified that when he was 40 or 50 feet from the intersection of the streets, and was traveling about 20 miles per hour, he saw defendant's truck which was some 15 or 20 feet 'out of the intersection.' The driver of defendant's truck testified that he was traveling about 15 miles per hour and had slowed up for the intersection; that as he pulled up to the pedestrian lane and glanced to the right, he saw plaintiff's truck, which had just crossed the light line, the lights on his right. He added On cross-examination he testified that the ground at the intersection was practically level; that he did not apply his brakes, but did try to increase his speed 'to get across ahead of the Hilkey truck.' Plaintiff's driver testified that he was familiar with the traffic ordinances of Denver, and expected the other truck would be stopped at the intersection; that he realized it had not been stopped, and was not going to be stopped, only when 'I saw his truck lights out my side window, that is the window of my side of the door.' He then endeavored to stop, sliding his wheels, but to no avail. There was no evidence that plaintiff's driver was speeding or that otherwise he was violating any definite or fixed traffic rule, ordinance or statute. The over-all length of defendant's semi-trailer, gasoline truck carrying gasoline was 35 feet. There was no testimony as to the length of plaintiff's truck, but evidently it was an ordinary twoton truck.
Section 65(a) of the Denver traffic ordinance provides: 'Every driver of a vehicle approaching the intersection of a street shall yield the right-of-way at such intersection to the driver of any vehicle approaching from the right, and the driver of the vehicle on the left shall decrease the speed of the vehicle operated by him and have said vehicle under control Before crossing such intersection, and it shall be his duty to yield the right-of-way to the vehicle on the right; * * * (f) The phrase 'vehicle under control' within the meaning of this section is defined as follows: A vehicle traveling at such rate of speed that it is possible under conditions then existing to come to a complete stop Before reaching the center of the street intended to be crossed.'
Complaining on error, counsel presenting the writ urge: (1) That the negligence of defendant was...
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...the jury, or for the trial court sitting without a jury, see Prentiss v. Johnston et al., 119 Colo. 370, 203 P.2d 733; Markley v. Hilkey Bros., 113 Colo. 562, 160 P.2d 394; Woods v. Siegrist, 112 Colo. 257, 149 P.2d 241; and Rigot v. Conda, supra [134 Colo. 375, 304 P.2d 'Upon consideration......
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