Opinion
As Modified on Denial of Rehearing Aug. 12, 1975.
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Grant E. Miller, Colorado Springs, for plaintiffs-appellants.
Rector, Melat & Wheeler, P.C., Jeffrey R. Wheeler, Colorado Springs, for defendants-appellees.
BERMAN, Judge.
Plaintiffs, Edward Shuey and his minor son, Lawrence Shuey, instituted this action against defendants J. B. Hamilton and his minor son, Harry Hamilton, to recover damages for injuries sustained by Lawrence when he was struck by an automobile driven by defendant Harry.
The case was tried to a jury which returned a special verdict allocating 70% Of the negligence to the plaintiff Lawrence, and 30% To the defendant Harry. The jury determined that plaintiff Edward Shuey had sustained damages amounting to $1,050, and the trial court entered judgment awarding this amount. Plaintiffs appeal. We affirm.
The accident in question occurred around 5:00 o'clock p.m. on January 7, 1972, on a clear, dry day when Lawrence, age 12, attempted to cross Fontaine Street in the Town of Widefield. Lawrence, going home from school, started to cross the street some distance from a controlled crosswalk, and was hit by defendant's car which was traveling behind a vehicle which made a right turn just prior to reaching the point where Lawrence attempted to cross.
There were no eye witnesses to the accident and the evidence presented at the trial was in conflict. Lawrence testified that he was 'hurrying as fast as he could' to get home, that after stepping off the curb he did not look in the direction of defendant's car, and that he wasn't sure 'whether it (defendant's vehicle) struck me or I struck it.' There were no skid marks at the scene. Both Lawrence and Harry testified that neither saw the other immediately prior to the impact. Lawrence received severe injuries to his left leg as a result of the accident.
Under our comparative negligence statute, in order for either or both of the plaintiffs to recover, it was necessary for the jury to find that Lawrence's negligence was less than the negligence attributable to Harry. Section 13--21--111(3), C.R.S.1973. Under the proper instructions, the jury determined, from the evidence presented, the percentage of negligence attributable to each of the parties.
Plaintiffs first contend that the trial court erred in not granting a new trial because the jury's allocation of negligence was against the weight of evidence. A motion for new trial made on the ground that the evidence is insufficient to support a verdict is addressed to the sound discretion of the trial court and a denial of the motion will not be disturbed unless there has been an abuse of that discretion. Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403. Considering the evidence in the light most favorable to the prevailing party, which we must do, Chartier v. Winslow Crane Service, 142 Colo. 294, 350 P.2d 1044; Book v. Paddock, 129 Colo. 84, 267 P.2d 247, we do not view the verdict as against the weight of the evidence and therefore find no such abuse of discretion. Since there was evidence presented which justified the jury's finding that both parties were at fault, and justified the allocation of negligence made by the jury, the verdict may not be disturbed. See Powell v. City of Ouray, 32 Colo.App. 44, 507 P.2d 1101.
Plaintiffs contend that the jury's determination that Edward Shuey sustained $1,050 damages is evidence that it failed to follow the trial court's instruction regarding damages and that this failure to follow the instructions is also applicable to the jury's allocation of negligence.
Corresponding with an earlier instruction, the special verdict form contained a series of questions to be answered by the jury, as follows:
'QUESTION NO. 1: Was the Defendant, Harry Hamilton, negligent?'
'QUESTION NO. 2: Was the Defendant's negligence, if any, a proximate cause of the plaintiff, Lawrence Michael Shuey's claimed injuries?'
'QUESTION NO. 3: Was the plaintiff, Lawrence Michael Shuey, contributorily negligent?'
'QUESTION NO. 4: Was the plaintiff's contributory negligence, if any, a proximate cause of his claimed injuries?'
After answering these questions, the jury was required to answer the following question: 'If you have answered Questions 1 and 2 'yea,' state without regard to the contributory negligence, if any, of the plaintiff the amount of damages, if any, you find were sustained by the plaintiff (Lawrence Michael Shuey, and his father, Edward G. Shuey) and proximately caused by the accident?'
In answering the question, the jury found that Lawrence Shuey had sustained no damages and Edward Shuey had sustained damages of $1,050. By stipulation the parties had agreed that the medical expenses of the father were $3,441.75. Plaintiffs did not request that the stipulated medical expenses be specifically included in the instruction.
We do not view the jury's arrival at the figure of $1,050 as evidence that it failed to follow the trial court's instructions; to the contrary, the jury did what it was instructed to do. Even were we to disagree with the figure arrived at, it is of little consequence since any question regarding damages is immaterial in view of our determination that the allocation of negligence is supported by the evidence. Gremban v. Burke, 33 Wis.2d 1, 146 N.W.2d 453.
We agree, however, that that part of the special verdict we have referred to above, although contained within the standard instruction, Colorado Jury Instructions 9:33 (1975 Supp.), could well lead to a misunderstanding on the part of the jury.
By the instruction and the verdict form the jury could be misled into believing that the amount of damages it enters on the verdict form will be the amount awarded to plaintiff. Indeed, that amount was erroneously awarded by the trial court in this case. Such a belief is understandable in view of the fact that the court could not instruct the jury on the legal effect of the jury's possible findings on the apportionment of negligence required by the instruction and the special verdict, nor are counsel permitted to comment on this subject during closing argument. Avery v. Wadlington, Colo., 526 P.2d 295; Simpson v. Anderson, Colo.,
However, in the instant case, while the jury may have misunderstood that portion of the special verdict referred to, such misunderstanding was not harmful to the plaintiffs. Under the allocation of negligence made by the jury, the trial court had the obligation after the verdict to grant judgment to the defendants on all issues. Avery v. Wadlington, supra. Instead, it awarded plaintiff Edward Shuey $1,050, and since no objection was raised to this award either in the trial court or this court, and since no cross-appeal was filed, that judgment will not be disturbed.
In order to carry out the spirit of the mandate of our Supreme Court in the Avery and Simpson decisions, we recommend that, in the future, Question No. 6 of the Colorado July Instructions 9:33 (1975 Supp.), be the first question in that instruction and in the corresponding verdict form, and that they be amended to state as follows:
The change in the statute noted in footnote 1 does not negate the rationale behind our recommendation. We believe that the statutory change makes it even more imperative.
'QUESTION NO. 1: State without regard to the negligence, if any, of either party, the amount of damages, if any, sustained by plaintiff and proximately caused by the (accident) (occurrence).'
We find no abuse of discretion in the trial court's ruling that testimony as to the habits of other children at a cross-walk was irrelevant and immaterial to the issues before it. Craghead v. McCullough, 58 Colo. 485, 146 P. 235. Plaintiffs complain that their tendered instruction regarding speed was refused; however, the record does not contain that instruction regarding excessive speed, C.R.C.P. 51, and, in any event, there was no evidence that defendant Harry was violating the posted speed limit.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.