Opinion
July 29, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Geer, Goodwin & Chesler, P.C., David L. McCarl, Denver, for plaintiff-appellant.
DeMoulin, Anderson, Campbell & Laugesen, Jack Kent Anderson, Denver, for defendant-appellee.
STERNBERG, Judge.
The sole issue in this appeal is whether there was sufficient evidence of negligence on the part of the plaintiff in an automobile-motorcycle collision to warrant the trial court's submission of the issue of plaintiff's negligence to the jury. Since we conclude that there was evidence in the record from which the jury could conclude that plaintiff was negligent, we affirm the judgment.
The accident occurred on August 30, 1973, at approximately 4 p.m. at the point where West 10th Avenue intersects with Kipling Street in the City of Lakewood. The streets were dry, the weather clear, and visibility good. Kipling Street is a four-lane roadway running in a generally north-south direction. West 10th Avenue interests it from the east, and traffic entering Kipling is controlled by a stop sign at that location. The speed limit on Kipling is 40 miles per hour, and the traffic lanes are 12 feet in width.
The evidence at the trial disclosed that plaintiff was driving a motorcycle in a northerly direction on Kipling Street in the left-hand or inside northbound lane at a speed of 30 to 35 miles per hour. The defendant, proceeding westerly in an automobile on West 10th Avenue, stopped at the stop sign controlling the entry onto Kipling, and then proceeded into the intersection. Apparently, defendant's vision of the oncoming motorcycle was obscured by two automobiles headed north no Kipling intending to turn right on West 10th Avenue. Defendant testified that when he noticed plaintiff's motorcycle he stopped his vehicle, and that the motorcycle kept heading toward him without slowing or turning and struck the front bumper of his car.
There were no skid marks at the scene of the accident. Based upon debris in the street, the investigating police officer testified that the point of impact was 15 feet west of the east curb line of Kipling which would place the front of defendant's vehicle three feet into the northbound lane of Kipling in which plaintiff was traveling. Thus, nine feet of that lane were open to plaintiff.
The issue of comparative negligence was submitted to the jury which found defendant to be 65 percent negligent and plaintiff to be 35 percent negligent. On appeal, plaintiff alleges that there was no evidence to support a finding of any negligence on his part since he was traveling in his proper lane, on a through street and within the speed limit, and the collision occurred within his lane of travel.
We disagree with plaintiff's contention. The evidence at the trial was conflicting as to how far away plaintiff's motorcycle was when defendant stopped, and as to how much time plaintiff had to react to avoid the collision.
A driver proceeding on a through street is required to have his vehicle under control so as to be able to stop and avoid a collision at an intersection, Vigil v. Kinney, 166 Colo. 12, 441 P.2d 7, even where he has the right-of-way. Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201. Such a driver must still observe a duty of reasonable care, and 'what is reasonable care under such circumstances is ordinarily a question of fact for the jury.' Rine v. Isham, 152 Colo. 411, 382 P.2d 535. Even where the facts are not disputed, '(w)hen two equally plausible conclusions are deducible from the circumstances, the jury, and not the judge, is to decide which should be adopted.' Richardson v. Pioneer Construction Co., 164 Colo. 270, 434 P.2d 403.
Based upon the evidence presented in the instant case, the jury could reasonably conclude either that plaintiff acted with reasonable care and could not react in time to avoid the accident, or that plaintiff was not paying sufficient attention to the actual or potential hazards of the situation and could have avoided the accident had he been observant. Therefore, it was not error to submit the question of his negligence to the jury. See Kistler v. Halsey, 173 Colo. 540, 481 P.2d 722; Gates v. Willford, 406 F.2d 890 (10th Cir.).
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.