delivered the opinion of the court.
Earl Ralph Widman, plaintiff in error here, plaintiff below, brought an action against Grover Cleveland Ash-craft to recover judgment for damages allegedy sustained by him as thе result of a collision between the automobiles owned by the respectivе parties. Defendant’s motion for summary judgment was granted and judgment entered acсordingly. Plaintiff here seeks a reversal.
The complaint was based on negligenсe; defendant by answer denied his negligence; and in separate defenses рlead plaintiff’s negligence and unavoidable accident.
Defendant introduсed in evidence plaintiff’s deposition, and relied solely thereon in support of his motion for summary judgment. It is settled law that on the hearing of a defendant’s motion for summary judgment the material allegations of the complaint must be acceрted as true, even though they are denied in the answer, and the motion should not be granted unless the depositions and admissions on file, together with any affidavits, clearly disclose that there is no genuine issue as to any material facts. According to рlaintiff’s testimony, as evidenced by his deposition — and, as above stated, this alonе was offered in support of the motion for summary judgment — the following are the pеrtinent facts: At about eight o’clock in the morning, he was driving easterly on East Twenty-sixth avenue in Denver, and defendant was driving northerly on Oneida street. As plaintiff approаched the intersection of said streets, an army truck was stopped on the sоutherly side *375 of the intersection, and the driver motioned plaintiff to proceed. Defendant, who was approaching the intersection from the south, turned his automobile to the left of the army truck into the southbound lane of traffic on Oneida street, and, while driving at a speed of thirty-five miles an hour, entered the intersection where his car collided with the rear part of plaintiff’s automobile, causing the damage of which complaint is here made.
The only specification neсessary for our consideration is the determination of the propriety of the summary judgment under the facts disclosed, which facts, for this purpose only, must be considеred as true.
Under applicable ordinances of Denver, and statutes of Cоlorado, so familiar to the profession and laity that citations thereto аre unnecessary, defendant had the right of way at the intersection if he was prоceeding in obedience thereto; however when he entered the southbound lane of traffic at the intersection, he violated a city ordinance; when, in approaching the intersection, he drove his car at a rate of sрeed of thirty-five miles an hour, he also violated an ordinance; under the applicable ordinances, he thereby lost his right of way; in fact, unless the defendant сould approach the intersection in the proper lane of traffic, he had no right of way. When the driver of the army truck stopped at the intersectiоn and motioned plaintiff to proceed through it, he yielded his right of way; plaintiff then wаs entitled to proceed and was not, as a matter of law, guilty of negligencе in doing so.
Bauserman v. White,
*376
In
Hatfield v.
Barnes,
In the instant case it clearly appearing from the pleadings and evidence that a clear-cut issue of fact was presented for determination, the trial court erred in granting the motion for, and entering, the summary judgment.
The judgment, accordingly, is reversed.