Rosenbaum v. Riggs

• Decision Date: 05 May 1924
• Docket Number: 10926.
• Parties: ROSENBAUM et al. v. RIGGS et al.
• Court: Colorado Supreme Court

225 P. 832

75 Colo. 408

ROSENBAUM et al. v. RIGGS et al.

No. 10926.

Supreme Court of Colorado

May 5, 1924

Department 3.

Error to District Court, Logan County; L. C. Stephenson, Judge.

Action by L. E. Riggs and another against S. P. Rosenbaum and another. Judgment for plaintiffs, and defendants bring error.

Reversed.

T. E Munson, of Sterling, for plaintiffs in error.

J. V Redmond, of Sterling, for defendants in error.

TELLER C.J.

The defendants in error had judgment against the plaintiffs in error for damages resulting from a collision between the automobiles of the respective parties. The parties will be designated as in the court below. It appears from the record that the plaintiff was driving westerly on Chestnut street in the city of Sterling, which street runs east and west. Mrs Rosenbaum, one of the defendants, was driving southerly on Third street. The collision occurred at the intersection of those streets, near the westerly line of Third street. At the time of the collision there was in force in the city of Sterling an ordinance which, among other things provided that 'at the intersection of streets the vehicle to the right has the right of way.'

The testimony as to the speed of the respective automobiles varied considerably. The testimony as to the defendant's speed was that it was from 15 to 20 miles an hour, except only that plaintiff himself testified that he estimated the defendant's car was running at 40 miles an hour. He said his car was going at the rate of from 8 to 10 miles, not to exceed 10 miles an hour, and that he could have stopped it within 5 or 6 feet, had he so desired. He testified that when he was near the middle of Third street he saw the defendant's car about 100 feet north of Chestnut street, but that he saw no reason why he should give it the right of way, because he was at the time near the middle line of Third street; also, that the other car was on the right side of Third street; that it was coming between 30 and 40 miles an hour; that the collision occurred when the fore wheels of his car were just out of the intersection; that the back part of his car was struck and the car was overturned. His testimony was to the effect that Third street was 50 feet wide from curb to curb; that when he first saw Mrs. Rosenbaum he knew she was coming fast, but thought he had no reason to stop.

The charge in the complaint is that the defendant was driving at 40 miles an hour. The defendant claims that the plaintiff was shown by the evidence to be guilty of contributory negligence, and therefore cannot recover.

It would seem that this charge is sustained by plaintiff's own testimony. He says that he was nearly at the middle of the intersection when he saw the defendant coming at a speed which he estimated at 30 or 40 miles an hour. If he were even at the middle line of Third street when he saw the defendant coming, he would have, according to his own measurement, to go 25 feet, plus the length of his car before he would be out of danger of collision. He estimated that the defendant's car was going practically four times as fast as he was going. It would therefore traverse the 100 feet as quickly as his car would traverse the 25 feet to the west line of the street. That being so, it was very apparent that if neither one of them stopped or slackened speed, there would be a collision. The defendant, being at the right of the plaintiff, had the right of way, and it was plaintiff's duty to recognize that, having the right of way, she might not slacken speed. Under the ordinance he should have given her the right of way, and decreased his speed so that she could pass the point of intersection in safety. It appears from his evidence that he assumed that, because he was well toward the center line of the street, he had the right of way, thus as thus court said in Golden Eagle...