Opinion
Rehearing Denied Nov. 23, 1971.
Quiat & Quiat, P.C., Alan H. Bucholtz, Walter L. Gerash, Denver, for plaintiff in eeor.
Williams, Erickson & Wallace, P.C., Wayne D. Williams, Howard E. Erickson, Denver, for defendant in error.
DUFFORD, Judge.
The parties are before us in their trial court positions. This action was instituted by the plaintiff in error, Green, against the defendant in error, Mrs. Pickett, to recover damages for personal injuries suffered by Green as the result of an automobile accident between the parties. The case was tried before a jury, and at the close of all evidence the trial court granted a motion for a directed verdict made by Green as to the issue of negligence. The case was submitted to the jury only on the issue of damages, and the jury returned a verdict specifying 'Nothing' as to the damages which Green suffered as a result of Pickett's negligence. Judgment was entered on the jury verdict, and plaintiff has appealed, contending that the jury verdict was contrary to the evidence, and also that the trial court erred in refusing two jury instructions tendered by the plaintiff.
A review of the record in this case reveals that the most definitive evidence with respect to Green's injuries and the cause thereof was furnished by certain medical doctors who had either examined or treated Green before or subsequent to the accident in question. One of the testifying physicians had examined Green prior to the accident and on the same day of the accident for exactly the same back ailment which Green testified he incurred as a result of the accident. At the time of the pre-accident examination, Green informed the physician that the back condition for which he sought the examination had been in existence over a substantial period of time. The only physician who could testify as to any possible aggravation of Green's condition as a result of the accident could do so only on the basis of statements which were made to that physician by Green concerning his condition prior to the accident and subsequent to the accident. Additionally, the record discloses that the accident in which the parties were involved was of a minor nature, and that there were instances in which the testimony of Green was challenged and proven to be untrue.
Considering the above matters, we cannot hold, as a matter of law, that the jury verdict was not supported by the evidence. The verdict was tantamount to a determination that Green's injuries had not been proximately caused by the accident involving Mrs. Pickett. Although the trial court found Mrs. Pickett negligent as a matter of law and that finding is not challenged, negligence which is not the proximate cause of injury is not actionable. Kent Manufacturing Co. v. Zimmerman, 48 Colo. 388, 110 P. 187. Green had the burden of proving that the injuries of which he complained were proximately caused by his accident involving Mrs. Pickett. It is obvious from its verdict that the jury, as the trier of fact, concluded he had not met such burden. The circumstances and evidence which we have outlined above give support to the jury's conclusion, and its determination will not be set aside. Bennett v. Lansaw, 152 Colo. 200, 381 P.2d 40.
With respect to the two instructions which Green contends should have been given, we note that instruction numbered 15, which was given by the trial court, adequately covers the matters contained in the instructions which Green asserts should have been given, although not in the exact wording which Green feels is applicable. Accordingly, since we can presume that Instruction No. 15 was understood by the jury, no prejudice was done to Green's position by the refusal of the trial court to instruct in the exact manner which Green requested. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659; Arapahoe Basin, Inc. v. Fischer, 28 Colo.App. 580, 475 P.2d 631.
Judgment is affirmed.
DWYER and ENOCH, JJ., concur.