Opinion
Rehearing Denied Feb. 29, 1972.
Carroll & Bradley, P.C., Rebecca L. Bradley, John S. Carroll, Denver, for plaintiff-appellant.
Sheldon, Bayer, McLean & Glasman, Richard H. Glasman, Denver, for defendant-appellee.
COYTE, Judge.
Plaintiff appeals from a judgment entered on a jury verdict for defendant in an action for damages resulting from an automobile collision.
The accident occurred August 18, 1965, at approximately 5:45 P.M., on Interstate 25 at the Colorado 7 Exit. Plaintiff and defendant were both headed north on Interstate 25. A slight mist or precipitation was in the air at the time, but no puddles were on the roadway. The speed limit at that point on Interstate 25 is 70 miles per hour. The exit lane is ten feet wide.
The plaintiff intended to take the Colorado 7 Exit and in preparation therefor slowed to 10 to 15 miles per hour and partially entered the exit lane. Varying testimony indicated that either one foot of or one-half of plaintiff's automobile remained in the outside (right) through lane. When first noticed by defendant, plaintiff's automobile was some distance ahead of defendant and appeared to be stopped or almost stopped partially in the defendant's lane. A third car was behind the defendant's automobile and was proceeding north in the inside (left) lane. Defendant rejected the possibility of changing lanes in order to avoid colliding with the plaintiff's automobile and instead applied his brakes in a pumping manner. He testified that his brakes had been working prior to the accident, but that they suddenly failed and he was unable to stop. The defendant's automobile struck the plaintiff's automobile. Following this collision the defendant's automobile was struck by the third automobile which had been coming north in the left-hand lane.
The jury rendered a verdict for the defendant. The plaintiff's appeal is based on three alleged errors: (1) that the instruction on the emergency doctrine should not have been given because there was no evidence of an emergency giving rise to the doctrine; (2) that the court erred in denying plaintiff's motion for leave to amend his reply to include the last clear chance doctrine, thus precluding an instruction thereon; and (3) that an instruction should have been given that, if the jury found defendant to be exceeding the speed limit, such violation constituted negligence per se.
We agree with the trial court and affirm.
I.
Where there is evidence to support the theory, an instruction on the sudden emergency doctrine is proper in rear end accident cases. Cudney v. Moore, 163 Colo. 30, 428 P.2d 81; Daigle v. Prather, 152 Colo. 115, 380 P.2d 670. Defendant testified that he was traveling about 65 miles per hour when he saw plaintiff stopped or almost stopped partially in his lane approximately 400 feet ahead, that he also saw a car approaching from behind him in the left northbound lane, and that unexpectedly his brakes would not function properly when applied just prior to the collision and he was unable to stop his vehicle. Such evidence, if believed by the jury, is sufficient to warrant a conclusion that the defendant was confronted with an emergency situation. Whether an emergency in fact existed under the circumstances and whether the decisions and actions of the defendant thereafter were those of a reasonably prudent person were properly submitted to the jury as the trier of facts. Stewart v. Stout, 143 Colo. 70, 351 P.2d 847.
II.
After the close of the evidence, the plaintiff moved to amend his reply to include the doctrine of last clear chance and requested an instruction to the jury regarding that doctrine. The doctrine of last clear chance must be affirmatively pleaded to allow the defendant notice and opportunity to defend on that theory. Barnes v. Wright, 123 Colo. 462, 231 P.2d 794; Bragdon v. Hexter, 86 Colo. 435, 282 P. 568. When an issue not raised in the pleadings has been tried by express or implied consent of the parties, C.R.C.P. 15(b) provides that the pleadings may, at any time, be amended to conform to the evidence. In this instance, however, the case was not tried on the theory of the last clear chance doctrine. Therefore, the trial judge's denial of the motion as not being justified by the evidence was proper.
III.
Finally, the plaintiff contends that the court should have instructed the jury that if the defendant were found to have been exceeding the speed limit, such violation constituted negligence per se. It would have been improper to have given the requested instruction since any finding of speed of defendant in excess of the speed limit would have been based upon mere possibility, conjecture or speculation. Polz v. Donnelly, 121 Colo. 95, 213 P.2d 385. The opinion of a lay person as to speed of an automobile coming under his observation is admissible and the weight to be accorded such testimony is for jury determination. However, when no sufficient facts are shown upon which to base an opinion of the speed of the vehicle, the opinion is mere conjecture and speculation. Rigot v. Conda, 134 Colo. 375, 304 P.2d 629. Defendant testified that he was driving between 60 and 65 miles per hour when he first noticed plaintiff. The only evidence that defendant might have been exceeding the speed limit was plaintiff's estimate of 75 to 80 miles per hour, based on his observation through his rearview mirror of defendant approaching from approximately 400 feet away while both automobiles were moving at widely different speeds. However, when asked by his own counsel if the speed could have been less, he replied, 'Yes, it could have been.' Evidence was presented as to the distance traveled by the plaintiff's car after the impact but no attempt was made to show that such distance would be more likely at 80 miles per hour than at 70 miles per hour or less.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.