Opinion
March 9, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 429
Yegge, Hall & Evans, Raymond J. Connell, Denver, for plaintiffs in error.
Hindry & Meyer, Jay L. Gueck, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and will be referred to by their trial court designations.
In their complaint plaintiffs alleged that defendant had installed a ventilating system in the plaintiffs' retinning business in a negligent manner, and that such negligence was the proximate cause of a fire and resulting property damage. The defendant counterclaimed to recover the agreed-upon contract price for installing the ventilating system. Trial was to the court, which found in part that the defendant did not construct the ventilating system in accordance with the specifications of the Denver Building Code as it relates to the ventilation of flammable vapors. However, the trial court concluded:
'That if the evidence had shown that Defendant knew or was told that the ventilating system would be used for flammable vapors, the ordinance relating to the requirement of a nine (9) inch clearance would be applicable; but that since there is insufficient evidence to establish that Defendant knew or was told that the ventilating system would be used for flammable vapors, the ordinance does not apply.'
and
'That the cause of the fire herein involved was not due to any negligence on the part of the Defendant.'
Based upon these findings, the trial court dismissed the plaintiffs' complaint and entered a judgment in the amount of $400 in favor of the defendant on his counterclaim.
I.
Appealing from such judgment, plaintiffs first assert that the evidence clearly established that the defendant knew or should have known that the ventilating system would be used for the purpose of carrying flammable vapors, and that, therefore, the defendant was negligent in failing to comply with the Denver Building Code.
The strongest evidence in the record to support this assertion was the fact that the defendant had observed the plaintiffs' retinning business in operation. Any inference to be drawn from this fact in favor of the plaintiffs' contention here was significantly diluted by the testimony of a witness from the City Building Inspector's office, who testified that while the work was in progress, he made a rough inspection of the defendant's work; that he approved the work up to that point; and that he was not aware that the ventilating system would be used to carry flammable vapors. In addition, the defendant testified that he was told that the purpose of the ventilating system was to remove odors from the building, and that he was not informed, nor was he aware, that the system would be used to ventilate flammable vapors.
Considering all of the evidence on this point and resolving all conflicting inferences therefrom in favor of the judgment, as we are required to do upon appellate review, Martinez v. Salazar, 137 Colo. 17, 320 P.2d 335, it is our opinion that the record supports the trial court's findings.
II.
Plaintiffs also assert that it was error for the trial court to allow a witness who was not listed in the pretrial order to testify on behalf of the defendant. The pretrial order in this case was entered approximately five years before the trial date.
At the time of trial, plaintiffs' attorney objected to allowing such witness to testify, and defendant's counsel informed the court that he had advised plaintiffs' attorney several days prior to trial that this witness would be called by the defendant. The trial court then ruled that the witness would be allowed to testify. R.C.P. Colo. 16 specifically authorizes modification of a pretrial order by a trial court to prevent manifest injustice. Such provision vests the trial court with a significant amount of discretion. Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763. Considering the date of the pretrial order and the defendant's contention that notice of the intended use of the witness was given before trial, we cannot say the trial court abused its discretion in permitting the witness to testify.
Judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.