Opinion
Dec. 27, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Eugene Deikman, Harry K. Nier, Jr., Denver, for plaintiff-appellant.
Burnett, Watson, Horan & Hilgers, Myron H. Burnett, Denver, for defendant-appellee.
PIERCE, Judge.
Plaintiff's wife, while walking as a pedestrian on the Valley Highway, was struck and killed by an automobile driven by defendant. Plaintiff brought this action seeking recovery of damages alleging that defendant operated her vehicle in a negligent manner causing the injuries and death of plaintiff's wife.
The evidence at the trial disclosed that on the night of the accident deceased, in an intoxicated state, was walking on the Valley Highway. Testimony established that passengers in a car which was travelling an undetermined distance in front of defendant's car had seen the deceased and had managed to avoid striking her. Defendant testified that she did not see the deceased until the moment of impact. Plaintiff contends that defendant's failure to see the deceased constituted negligence and that, even though deceased was unquestionably contributorily negligent by walking in her condition on the Valley Highway at night, defendant had the last clear chance to avoid the accident.
The matter was tried to a jury. However, at the close of plaintiff's evidence, the trial court directed a verdict for the defendant, ruling that the deceased's own negligence was the sole cause of her death. The court specifically ruled that, viewing the evidence in the light most favorable to plaintiff, plaintiff had failed to establish any negligence on the part of defendant, and therefore the issue of last clear chance was not relevant. Plaintiff appeals. We affirm.
Plaintiff does not deny that deceased was contributorily negligent by being on the highway but rather contends that the evidence was sufficient as a matter of law to submit the issues of defendant's negligence and the doctrine of last clear chance to the jury.
To support his contention that the doctrine of last clear chance was applicable, plaintiff constructs an argument using figures which are not readily inferable from the evidence. Plaintiff argues that defendant could have been the deceased for a period of seven to ten seconds prior to impact. However, even if we accepted these figures as derivative from evidence offered, they do not support a finding of negligence. The record is void of any evidence which would detail the location of the deceased during the period of time in which the defendant might have been able to see her except that she was obviously somewhere between the two barriers which restricted pedestrians from entering the immediate area of the highway. Deceased may have been on or off the highway during a considerable portion of this time. If the deceased had been off the highway for most of this period of time, the defendant would not have been negligent in failing to avoid the deceased even if she could have observed her for this period of time as the deceased may have very suddenly placed herself in the position of peril.
While it is established that only in the clearest of cases should a verdict be directed, Gomez v. Miller, 170 Colo. 106, 459 P.2d 126, plaintiff's presentation of evidence, indicating merely the happening of an accident, is not, by itself, sufficient to establish defendant's negligence. Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705. Where, as here, the jury would have to speculate or conjecture as to the location of the deceased at the time defendant was supposed to have been able to see her, there is an insufficient basis upon which a jury could conclude that the defendant had either a last or a clear chance to avoid the deceased. Dilts v. Baker, 162 Colo. 568, 427 P.2d 882; Russell v. Phillips, 121 Colo. 342, 216 P.2d 424. Viewing the evidence in the light most favorable to plaintiff, the facts in this case would not support the conclusion that defendant was negligent or that last clear chance was involved. Therefore, deceased's own negligence precludes the plaintiff from recovery. Judd v. Aragon, 136 Colo. 260, 316 P.2d 250; Dennis v. Johnson, 136 Colo. 357, 317 P.2d 580.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.