
    No. 13,278.
    Glenn v. Halberg.
    (40 P. [2d] 240)
    Decided January 7, 1935.
    Mr. Edward L. Wood, Mr. B. H. Shattuck, for plaintiff in error.
    Mr. John N. Mabry, Mr. Nicholas C. Dazzo, for defendant in error.
    
      In Department.
    
   Mr. Justice Campbell

delivered the opinion of the court.

The plaintiff Halberg, about seven o ’clock in tbe afternoon of February 5,1932, parked his car on tbe east side of North Commercial street in tbe city of Trinidad, Colorado, in front of tbe Strand Theatre building, directly opposite tbe Riverside Drug Store, and started to walk across tbe street to tbe store. "While crossing tbe street and at a point about tbe middle of the block Halberg was struck by a car driven by tbe defendant Glenn. Halberg was seriously injured and incapacitated for several months from performing bis usual duties. This action was brought by him in which be named as defendants, Glenn and bis employer, tbe Nuckolls Packing Company. At the trial of tbe case, on tbe conclusion of tbe evidence, the court directed a verdict in favor of tbe Packing Company and submitted to the jury, upon tbe evidence produced, tbe case as made against Glenn, with tbe result that tbe verdict of tbe jury was in favor of tbe plaintiff and against tbe defendant Glenn, on which tbe trial court entered judgment. Defendant Glenn is here with this writ of error seeking a reversal of such judgment.

Apparently counsel for both of tbe parties consider tbe vital question in tbe case, tbe alleged negligence of tbe defendant, a close one. However that may be, we think this judgment should be reversed on tbe ground that prejudicial error against tbe plaintiff in error was committed by tbe court in its contradictory instructions.

Tbe plaintiff Halberg bases bis right to a judgment against Glenn upon tbe alleged fact that while be, Hal-berg, was walking across North Commercial street in the city of Trinidad, tbe defendant Glenn negligently drove his car upon him and inflicted upon bis person serious injury. Halberg produced witnesses who testified that there was a crosswalk between tbe Strand Theatre on North Commercial street and tbe Riverside Drug* Store directly opposite tbe same and that this was a regular pedestrian crossing included in the prolongation of tbe lateral boundary lines of tbe adjacent sidewalk at tbe end of a block and that plaintiff received his injuries complained of at this place or within this space.

In Instruction No. 8, which at Halberg’s request was given, the court instructed that if, at the point mentioned, there was any such clearly marked crosswalk and that plaintiff received the injuries complained of at this place or within this space, he, the plaintiff, had the right of way in crossing the street and that defendant Glenn was bound to exercise reasonable care in anticipating the presence of pedestrians upon the street at that place, and to exercise reasonable care not to injure them. Instruction No. 9 reads: “The Court instructs you that at the time of the accident in question the plaintiff, Arthur ft. Halberg, was crossing North Commercial street at a point other than a pedestrian crossing, crosswalk or intersection, and that it was therefore his duty under the law to yield the right of way to the automobile then and there being driven by the defendant Buford Glenn. You are further instructed that the plaintiff’s failure to obey this mandate of the law was negligence in and of itself, Avhich negligence, if you find that it contributed to cause the accident, bars a recovery by the plaintiff and requires a verdict in favor of the defendants even though you also find that the defendants, or either of them, were guilty of negligence contributing to cause the accident.”

A reading of these two instructions discloses that there is an inconsistency and repugnancy between them which necessarily must have misled the jury. At all events, both of them cannot be correct because the one contradicts the other.

There was an ordinance of the city of Trinidad at this time reading as follows: “Pedestrians desiring to cross the streets in the business district shall do so only at street intersections, and in no case shall they cut diagonally across street intersections, but shall cross at rigid angles to the direction of the streets. Vehicles of all kinds shall have the right of way over pedestrians at all points on a street between regular crossing’s.” In this state of the record we are satisfied that the jury must have been misled by the instructions.

There are other instructions to the jury that are questionable but we think that, in event of another trial of this case, the trial court will not be likely to repeat them and we forbear discussion of the same at this time. The judgment is reversed and the cause is remanded to the district court. Further proceedings, if any, in the case must not be inconsistent with the views expressed in this opinion.

Mr. Chief Justice Adams and Mr. Justice Hilliard concur.  