Opinion
Oct. 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ashen & Fogel, George T. Ashen, John F. Griebel, Denver, for plaintiff-appellant.
Yegge, Hall & Evans, Raymond J. Connell, Denver, for defendants-appellees.
ENOCH, Judge.
This is a tort action for the recovery of damages for personal injuries. Plaintiff, Philip Donmyer, appeals from a judgment which set aside the original jury verdict and granted defendant J. W. Allison's motion for a new trial. Plaintiff also appeals from the judgment of the second trial alleging error in the court's refusal to submit a particular instruction to the jury. We reverse the judgment granting the new trial.
Plaintiff brought this action to recover for injuries he sustained in tripping over a carpet in the foyer of defendant's commercial building. Plaintiff fell down four or five steps and landed at the bottom of the foyer, injuring his ribs, his right wrist, and right knee. Plaintiff's complaint alleged negligence and maintenance of an ultrahazardous condition. At the first trial the jury returned a verdict in favor of plaintiff and set damages in the amount of $50,000. The court entered judgment for that amount. Defendant then moved for a new trial, and the court granted the motion and ordered a new trial on the issue of damages only. Though the court did not explain the basis for its ruling, it is presumed that the court determined that the damages awarded were excessive as a matter of law. The new trial resulted in a jury verdict of $5,000.
Determination of damages in a particular case is within the exclusive province of the jury and is committed to its sound discretion. Kohut v. Boguslavsky, 78 Colo. 95, 239 P. 876. For a court to grant a new trial because of excessive damages, the jury verdict must clearly be grossly excessive and must appear to be influenced by factors other than the presented evidence. Mosely v. Lamirato, 149 Colo. 440, 370 P.2d 450; See Hartford Fire Insurance v. Kolar, 30 Colo.App. 1, 488 P.2d 1114; DeMott v. Smith, 29 Colo.App. 531, 486 P.2d 451.
In this case there was evidence that the injury to plaintiff's knee resulted in hospitalization for a month, surgery which necessitated wearing a cast for a month, use of crutches for one and one-half months, and intermittent use of a cane since that time, particularly during inclement weather. Plaintiff also testified that he continued to have difficulty with the knee after surgery, and that at the time of trial, some four years after the accident, he was still experiencing pain and discomfort. Plaintiff's doctor testified that plaintiff had a significant degree of disability and gave his opinion that plaintiff had a disability rating of thirty percent minimum at the level of the right knee. Defendant did not present any medical testimony. There was evidence that plaintiff's knee was unstable and that this condition adversely affected his employment opportunities. He was unemployed for some time after the accident, and when reemployed received an annual salary of approximately $6,600 which was about $1,400 per year less than his salary at the time of the injury. The jury was instructed that plaintiff had a life expectancy of 19.71 years. There was also evidence that the knee condition precluded recreational activities that plaintiff had enjoyed in the past.
There was conflicting evidence as to the extent of the injury and resulting damages. However, we cannot say as a matter of law that the verdict is grossly excessive, particularly in light of the fact that plaintiff presented evidence of lost wages, of continued pain and discomfort, and unrebutted medical testimony of permanent damage to his knee.
Much of defendant's argument in support of the contention that the first verdict was excessive is based on certain impeachment evidence submitted in the second trial. In short, defendant contends that his evidence presented in the first trial supplemented by the evidence in the second trial clearly demonstrates how excessive the verdict was in the first trial. We find no merit in this argument. The verdict in the first trial must be evaluated on the basis of the evidence produced by the parties in the first trial.
There is no indication that factors other than the evidence influenced the jury, and there being evidence in the first trial from which the jury could have arrived at its verdict, it was error for the trial court to have set aside the verdict. DeMott v. Smith, Supra. In view of the disposition of this issue, it is not necessary to consider plaintiff's allegations of error in the second trial.
The judgment is reversed and the cause is remanded with directions to reinstate the verdict of the jury in the first trial and enter judgment thereon.
RULAND and KELLY, JJ., concur.