dissenting:
If a simple factual situation, presented without dispute, such as contained in this record, can be said to be such a case as to warrant submission thereof to the jury, then I can perceive no case from this date in which a trial judge can render a decision as a matter of law in an automobile negligence case. In an attempt to justify the classification of this case among those presenting a jury question, the majority opinion by judicial fiat gives an explanation which this plaintiff never gave in her testimony before the jury as to why she did not see the defendant’s car.
The majority opinion — not the evidence or any testimony in the case — says that the speed of the defendant could have placed him so far away from the intersection as to account for plaintiff not seeing the defendant. But this does not line up either with the plaintiff’s testimony or the photographic evidence produced in this case. The plain fact of the matter is that the plaintiff said that she didn’t see the car at any time and admitted that even to the day of the trial she didn’t have the slightest idea as to who or what hit her except from information supplied by the defendant himself and the officers investigating the accident. Plaintiff testified that she was familiar with the intersection and with the cross street which she was approaching and that she knew it to be a busy one. Although it was not a “through” or “stop” street, she said she stopped anyway, or at least executed what is familiarly known as the “California stop” wherein one keeps the car rolling slowly and does not come to an absolute stop. She claimed she looked to the left and *211to the right, and, in support of her powers of observation, testified that she could see so well that she observed a bus crossing a street two blocks to the right. She at one time said she could see three blocks to her left, but changed that to two blocks. If her view was obstructed at all, it was well before she reached the area that would be designated as a crosswalk. From the place where the three foot terrace slopes to the sidewalk, there is not only the width of the sidewalk itself but a parking area of the normal proportions, and then there was an additional fifteen feet of the street, all of which she traversed before reaching the point of impact.
The majority opinion stresses the fact that plaintiff stopped and that she proceeded slowly. It glosses over, by simply ignoring it, the fact that she didn’t see. By both stopping and proceeding slowly it would be thought that the necessity thereof would be to give her a better opportunity to view the situation at hand. Yet blindly (she might just as well put on a blindfold) she proceeded into the intersection. Although the defendant, trying to avoid the collision, laid down twenty-one feet of skid marks, plaintiff didn’t observe his immediate presence, the immediate hazard involved, and she did not, as she well could have, stop short of the point of impact. Why? Because she didn’t see anything to stop for.
The majority opinion labels defendant’s negligence as palpable. This we doubt in view of his stopping at the point of impact and making some effort to miss this car crawling slowly into his path. His negligence is nevertheless admitted. There isn’t any doubt about it. However, in Kracaw v. Micheletti, 85 Colo. 384, 276 Pac. 333, the defendant Micheletti was going at a flagrant rate of speed — not present in this case — and although he was on the right and not the left, nevertheless, by reason of his speed the right of way which the ordinance would ordinarly have given him was lost to him. In that case, because the plaintiff Kracaw did not sufficiently ob*212serve the Micheletti car and failed to do the things for her own protection that were dictated by the circumstances, the court held that the plaintiff could not recover as a matter of law. Here is the apt language, which by citation of the Kracaw case in other cases was, until today, I thought, the law:
“* * * An automobile driver does not perform his duty if he merely looks to the right. The look must be accompanied by reasonable thought and judgment, otherwise there would be no reason for the duty. One could, in effect, drive the streets blindfolded and still be absolved from his own negligence. No reasonably prudent person in plaintiff’s position would have failed to recognize the fact that defendant’s car was approaching at an excessive and negligent rate of speed. Plaintiff cannot be heard to say that she failed to recognize the speed of defendant’s automobile. She has wholly failed to explain her own negligent act and to maintain the burden of proof. The law applied is in consonance with Livingston v. Barney, 62 Colo. 528, 163 Pac. 863; Rosenbaum v. Riggs, 75 Colo. 408, 225 Pac. 832; Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 Pac. 850, and St. Mary’s Academy v. Newhagen, 77 Colo. 471, 238 Pac. 21.”
Failure to see to the right was declared negligence as a matter of law barring plaintiff’s recovery in the following cases: McLennon v. Whitney-Steen Co., et al., 63 Colo. 568, 167 Pac. 771; Brickey v. Herring, 96 Colo. 181, 41 P. (2d) 298; Fabling v. Jones, 108 Colo. 144, 114 P. (2d) 1100; Aaron v. Wesebaum, 114 Colo. 61, 162 P. (2d) 232; Werner v. Schrader, 127 Colo. 523, 258 P. (2d) 766.
Failure to look or to see what was plainly visible to the left barred recovery as a matter of law in Denver Equipment Co. v. Newell, 115 Colo. 23, 169 P. (2d) 174; Clibon v. Wayman, 137 Colo. 495, 327 P. (2d) 283.
Failure to see what was plainly visible ahead was declared to be negligence as a matter of law. Ridenour *213v. Diffee, 133 Colo. 467, 297 P. (2d) 280; Union Pacific v. Cogburn, 136 Colo. 184, 315 P. (2d) 209.
Oddly enough, in the Denver Equipment Co. case containing dicta, quoted in the majority opinion, the court said unequivocally that the plaintiff could not recover. The question of plaintiff’s contributory negligence was never submitted to the jury and the case states in strong language that it was the duty of the court to render judgment in favor of the defendant. This court made it quite clear it would not have approved a judgment in plaintiff’s favor in that case for the reason that plaintiff failed to see what was there plainly to be seen.
In the majority opinion, Mr. Justice Moore is quoted with approval from Kendall Transportation Co. v. Jungck, 136 Colo. 339, 316 P. (2d) 1052. I find no comparable situation to this case. It is plainly stated in the Kendall case that the evidence was sufficiently in conflict with relation to lighting, obstruction, time intervals, distances and measurements, etc. There was no conflict here.
By this opinion, the relegation of the trial judge to the position of referee in automobile damage cases wherein a jury has been asked for, has thoroughly confused the state of the law in this state. With the mounting toll of death and destruction on the highway, every case now is a fair gamble before the jury. If blindly entering an intersection can be said to be prudent because a jury verdict so indicates (notwithstanding the fact that so many factual matters enter into jury deliberations); if such admitted conduct demonstrating complete lack of care can now be said to be a subject readily to be debated by juries; if it can be said that such conduct can just as readily be said to be proper as to be foolhardy, then the duty of judges to pronounce the law has been so weakened as to be in the future virtually non-existent.