Opinion
Rehearing Denied July 29, 1975.
Page 510
Anthony Nesbit, pro se.
Max P. Zall, City Atty., Lee G. Rallis, John E. McDermott, Asst. City Attys., Denver, for defendant-appellee.
PIERCE, Judge.
Plaintiff, Anthony Nesbit, brought this action alleging that the city negligently maintained a sewer line near plaintiff's home which proximately caused damage to his property when sewage backed up into his basement.
At trial, considerable testimony on the issue of damages was presented, but there was relatively little evidence on the question of negligence. There was evidence that the line had been blocked by a combination of several substances, but the source of their entry into the sewer system was not established. The only question presented to the jury was whether the manner and frequency of the city's maintenance and inspection of the particular section of the sewer line involved here, or the activities of the city agencies in their attempt to unplug the sewer and remove waste waters from plaintiff's home, had negligently and proximately caused any or all of the plaintiff's damages. The jury resolved all issues in favor of the city and judgment was rendered on that verdict. We affirm.
The initial alleged error advanced by the plaintiff is that the trial court erred in not instructing the jury on pain and suffering, inconvenience, and annoyance, as elements of his alleged damages. The record reflects that no objections were made by plaintiff, who was then represented by counsel, as to any of the instructions which were tendered. Under such circumstances, this alleged error is not reviewable by this court. C.R.C.P. 51; Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 470 P.2d 34. Moreover, even if error were made in this respect, such error is without effect because where a jury resolves the negligence issues in favor of the defendant, no damages can be awarded in any instance. Schlesselman v. Gouge, 163 Colo. 312, 431 P.2d 35; Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861.
Plaintiff further cites as error the failure of the trial court to sequester the jury overnight after submission of all the evidence. There is no indication in the record that the trial court in any way abused the discretion granted to it under C.R.C.P. 47(l). The court properly and repeatedly cautioned the members of the jury as to their necessary conduct during periods when the individual members were absent from the court room or jury room during the trial, and the record is completely devoid of any evidence that the jurors did not meticulously follow the cautionary instructions of the court. In the absence of any showing that the jurors had been tampered with or improperly influenced, their verdict must be sustained. See Dozenback v. Raymer, 13 Colo. 451, 22 P. 787.
Plaintiff then argues that he was entitled to a new trial on the basis of newly discovered evidence. A close scrutiny of the record does not reveal any matters of evidence which plaintiff intended to present upon a re-trial that were not available to him or that with reasonable diligence could not have been discovered and produced at trial. Therefore, a new trial on this allegation would not have been justified under the provisions of C.R.C.P. 59(a)(4). See Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808; Sall v. Sall, 173 Colo. 464, 480 P.2d 576.
The balance of plaintiff's briefs contains a general attack upon the fact determinations made by the jury and we glean from materials presented with his motion for new trial an expressed disenchantment with the jury system, Per se. Since plaintiff has suffered a substantial pecuniary loss, we can readily understand such expressions of dismay, but we cannot sanction the abolition of an institution which has for so long served our citizenry as a dependable, if not perfect, arbiter of justice under law. See De Parq, Thoughts on the Civil Jury, 3 Tulsa L.J. 1; Edelstein, A Kind Word for the Civil Jury, 17 NACCA L.J. 302.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.