Opinion
Mellman, Mellman & Thorn, Gerald N. Mellman, Denver, for plaintiff in error.
Forrest C. O'Dell, Denver, for defendant in error, Rae Ann Roberts.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is a wrongful death action. Plaintiff, Kathleen Roberts, was the mother of the deceased child. Defendant, Rae Ann Roberts, is a sister of the plaintiff and was the driver of the car in which the deceased child was a passenger at the time of the accident. Defendant, Millard Morris, was the driver of the other car involved in the accident. Morris was not served with process, did not appear, and is not a party to this appeal.
Trial was to a jury which returned a verdict in favor of the defendant Roberts. The only question raised by the plaintiff in this appeal is whether the trial court erred in refusing to grant plaintiff's motion for a directed verdict on the issue of defendant's negligence.
The accident occurred January 24, 1966, at the intersection of Williams Street and East 29th Avenue in Denver. The plaintiff's own evidence established that defendant Morris was traveling east on East 29th Avenue, which is a through street, at a speed of approximately 50 m.p.h. in a 30 m.p.h. zone. Defendant Roberts was traveling south on Williams Street which is not a through street and is controlled by stop signs. All of the evidence indicates that defendant Roberts stopped at the stop sign and then pulled out into the intersection when defendant Morris was observed to be about one-half a block from the intersection. The Morris car struck the side of the Roberts car. The defendant Roberts had no recollection of any events from the time when she was about 2 blocks from the intersection prior to the accident until she regained consciousness in the hospital after the accident.
The doctrines of failure to maintain a proper look out and failure to see what could or should have been seen, as argued by plaintiff, are not applicable to this case because there is a lack of any evidence to support either conclusion. Entering an intersection after stopping at the stop sign is not negligence in and of itself. Also, the mere happening of an accident does not raise any presumption of negligence on the part of any person involved therein. Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705.
The controlling intersection ordinance is Section 512.3--2 of the Denver Municipal Traffic Code, which states:
'The driver of a vehicle shall likewise stop in obedience to a stop sign * * * as required herein at an intersection where a stop sign * * * is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obligated to stop * * * and which are within the intersection Or approaching so closely as to constitute an immediate hazard, during the time such driver is moving across or within the intersection * * *.' (Emphasis added)
The emphasized portion of the above-quoted ordinance is the controlling provision in determining the negligence, if any, of defendant Roberts. Was the Morris vehicle approaching so closely as to constitute an immediate hazard? On this point we have no testimony from either driver. Morris was about half a block away coming at a speed of about 50 m.p.h. Roberts had stopped at the stop sign before proceeding into the intersection. Clearly, this evidence raises a question of fact, considering speed, distance and timing, as to whether there was an immediate hazard situation. The trial court properly submitted this issue as a question of fact to the jury for its determination.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.