Opinion
Dec. 22, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 707
Sheldon, Nordmark & Bayer, Daniel H. Polsby, Denver, for defendant in error, Albert Y. Nakata.
Alan H. Bucholtz, Harry L. Arkin, Denver, for plaintiff in error.
Weller, Friedrich, Hickisch & Hazlitt, Geoffrey S. Race, Denver, for defendant in error, Hover Motors, Inc.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error, plaintiff below, and referred to hereinafter as such, brought this action against defendants in error, hereinafter referred to by name, to recover damages for the wrongful death of her husband, Antonio Herrera, under C.R.S.1963, 41--1--1 et seq. The record reveals that plaintiff and her husband purchased a used automobile from Hover Motors in June of 1965. At the time of purchase, the vehicle carried an inspection sticker issued by Hover Motors, Inc., certifying a safety inspection had been made and that, among other things, the vehicle's exhaust system had passed inspection.
Some four months after its purchase, on September 25, 1965, the Herrera vehicle was struck from behind by one driven by defendant Nakata, resulting in heavy damage to it. The impact sprung the trunk lid, which caused it to overhang the lower rear panel of the trunk compartment (which had been pushed in) by several inches, and which prohibited it from closing. There was other miscellaneous damage to the rear of the car. Two days later, the Herreras took the vehicle to Hover for an estimate on repairs; however, repairs were never made.
Approximately one month after this accident, Antonio Herrera was asphyxiated by exhaust fumes from the car while sleeping in the vehicle with the motor running and while apparently under the influence of alcohol. It is undisputed that the cause of Herrera's death was carbon monoxide poisoning. This action results from that unfortunate occurrence.
In her complaint, plaintiff alleged as a cause of action against Hover Motors (1) a breach of express warranty that the car was in safe mechanical condition at the time of sale due to defects in the exhaust system at the time of the sale; and (2) negligence in Hover's inspection of the exhaust system. As a cause of action against Nakata, she alleged negligent driving, causing the collision mentioned Supra, which proximately resulted in Herrera's death. She sought judgment in the amount of $25,000, plus interest.
The theory underlying plaintiff's complaint was that Herrera's death was brought about in either, or both, of the following ways:
1. By defects in the vehicle's exhaust system, in the form of holes caused by corrosion, through which exhaust fumes escaped and seeped into the passenger compartment by way of holes in the floor of the car, which defects were present not only at the time of death, but also at the time of sale of the vehicle to the Herreras, and at the time of the vehicle's safety inspection by Hover; and that defendant Hover was negligent in not discovering and remedying these defects, and breached an express warranty that the vehicle's exhaust system was safe (as indicated on the safety inspection certification).
2. By damage done by Nakata to the Herrera vehicle's trunk in the accident of September 25th, which created a situation in which the exhaust fumes seeped into the trunk of the vehicle and thence, from behind the rear seat back, into the passenger compartment; and that, therefore, Nakata's negligent driving proximately resulted in Herrera's death a month later.
Hover denied parts of the complaint material to it (except for the sale of the vehicle) and ultimately set up the affirmative defenses of contributory negligence, assumption of risk, and negligence of a third party. Nakata denied parts of the complaint material to him, and set up the affirmative defenses of contributory negligence and of lack of proximate causal relationship between the accident of September 25 and Herrera's death from asphyxiation on October 18.
As part of the pretrial discovery, certain interrogatories were submitted to Hover. These were objected to in part, and the objections sustained. The objectionable interrogatories sought to determine whether or not Hover had been involved in litigation over defective vehicles (if any) sold by it in the past. The objections were based on grounds of irrelevancy to the issues at hand.
At trial plaintiff sought to adduce evidence in support of her alternative theories. In particular, she sought to elicit from her witness Morse, a service station mechanic whom she attempted to qualify as an expert on exhaust systems, an opinion that holes discovered in the exhaust system at the time of Antonio Herrera's death must have, from their size and nature, been present at the time of original inspection by Hover. This, of course, would tend to establish a defect sufficient to support the allegations of breach of warranty, and also a defect which should have been discovered, in support of her theory of negligence in Hover's inspection. Her witness was prevented from rendering any such opinion on grounds that although he was qualified to testify to defects in the exhaust system, and the repair thereof, he was not qualified to render opinions as to how long such defects had been present--having had no training in metallurgy and other specialties necessary to draw such conclusions.
At the end of plaintiff's case, defendant Hover moved for a directed verdict on several grounds, which was granted; defendant Nakata's similar motion was denied and trial proceeded. At the end of trial, the jury rendered a verdict in favor of Nakata. Plaintiff's motion for new trial was denied and error taken.
Plaintiff makes several assignments of error. We address ourselves, however, only to the following which we feel are dispositive of the case:
1. The court erred in sustaining defendant Hover's objections to certain questions proponed in pretrial Interrogatories, on grounds that they were irrelevant to the material issues in controversy;
2. The court erred in failing to take judicial notice of the nature of carbon monoxide gas;
3. With regard to defendant Nakata, the court erred in failing to submit plaintiff's requested instructions 10 ('Condition at the time of the Accident') and 13 (nature of carbon monoxide gas);
4. With regard to defendant Nakata, the court erred in giving defendants' requested instructions 8 ('foreseeability') and 9 ('intoxication');
5. The court erred in refusing to allow witness Morse to testify as an expert on the subject of the length of time the exhaust system may have been in defective condition.
6. The court erred in failing to grant plaintiff's petition for waiver of costs.
OBJECTION TO INTERROGATORIES
We decline to consider this issue because it is not properly before us, not having been raised in, and therefore preserved by, plaintiff's motion for new trial. R.C.P.Colo. 59(f).
JUDICIAL NOTICE
Plaintiff assigns as error the trial court's failure to judicially notice that carbon monoxide gas is an odorless, colorless and tasteless gas.
We know of no rule in Colorado that a court Must take judicial notice of particular scientific facts. That courts May and do take such notice, when the facts are of common knowledge or easily susceptible of proof, is clear, (29 Am.Jur.2d Evidence 104; 31A C.J.S. Evidence s 76, p. 75; C. McCormick, Law of Evidence, ss 324--325 (1954); Lord v. City & County of Denver, 58 Colo. 1, 143 P. 284), and we feel that the trial court could have done so in this case. But except for limited instances in which there are statutory mandates (E.g., C.R.S.1963, 139--1--6--Municipal Incorporation) or in which narrowly limited case law requires (E.g., Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 414 P.2d 657--Mortality tables), judicial notice is within the discretion of the trial court. McCormick, Supra, s 330. The Court's exercise of that discretion, as in any other discretionary matter, will not be disturbed on review unless there is an abuse. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450.
TENDERED INSTRUCTIONS
Plaintiff next asserts that after the case against Hover Motors was dismissed, the trial court erred in failing to give her requested instructions 10 and 13 to the jury regarding her case against Nakata.
The text of plaintiff's tendered instruction 10 was as follows:
'You are instructed that a person who causes damage or injury to the person or property, takes the person or property in the condition it was in at the time of the accident; that is to say, the consequences of the action of the person causing damage may not be excused due to his lack of knowledge of the prior condition of the person or property damaged.'
That the requested instruction is a substantially correct statement of the law is clear. The record does not show, however, proof of any prior condition of the deceased or his automobile at the time of the accident which, when combined with the alleged negligence of Nakata, could have produced the death of plaintiff's husband one month later. Had the instruction been given under these circumstances, it would have served only to confuse the jury. Houser v. Eckhardt, Colo., 450 P.2d 664. Plaintiff's theory of the case was adequately covered by other instructions given. There was, therefore, no error in the court's refusal to give this requested instruction.
The text of plaintiff's instruction 13 was as follows:
'You are instructed that carbon monoxide is a gas which, when unmixed with other gases, is odorless.'
If plaintiff had introduced conclusive evidence to the effect that carbon monoxide is odorless, then plaintiff's requested instruction might have been proper. However, plaintiff gave no such evidence, instead, requesting the trial court to take judicial notice of this fact, which the court would not do. Consequently, there was no evidence in the record as to the nature of carbon monoxide gas. With no evidence, the requested instruction was not warranted, and the trial court did not err in refusing to give it. Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784.
INSTRUCTIONS GIVEN
Plaintiff objects to the court's giving of instructions 8 and 9 to the jury for its deliberation concerning defendant Nakata.
Instruction 8 dealt with the issue of 'foreseeability.' The instruction consisted of a verbatim quote from Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036. This instruction is not in conflict with the content of Colorado Jury Instructions 9:28. Plaintiff argues that because the instruction given was a verbatim quote from a case, it was improper because use of 'an abstract quote from a case incorporated as an instruction has been condemned by the Supreme Court * * *.' In support of this contention, she cites Denver Tramway Corp. v. Kuttner, 95 Colo. 312, 35 P.2d 852, where the court stated at 318, 35 P.2d at 854:
'(Q)uoting verbatim from detached parts of the arguments found in court opinions is not always to be commended, for often the context is necessary to qualify language that otherwise would seem too broad.'
This is not a blanket prohibition of the practice of abstracting quotations from case law for use as jury instructions. Further, in the context of the instant case, the quotation abstracted, which, we note, plaintiff does not contest substantively, is a correct statement of the law.
Plaintiff also asserts that the issue of foreseeability was adequately covered in instructions given on negligence and on proximate cause, and that, therefore, this instruction was unnecessary. We do not agree. In fact, we find, after a careful reading of these instructions, nothing speaking to the issue of foreseeability. In light of this, and in light of the fact that foreseeability was clearly an issue in this case, the trial court did not err in giving the requested instruction.
With regard to instruction 9 on 'intoxication,' plaintiff asserts that she was unduly prejudiced by over-emphasis on this aspect of the case which, she asserts, was adequately covered by instructions given on negligence and contributory negligence. She cites Pletchas v. Von Poppenheim, 148 Colo. 127, 365 P.2d 261, in support of this contention. In Pletchas, an instruction was given without objection on assumption of risk and contributory negligence, which made liberal reference to the issue of intoxication, with the result that another instruction, dealing specifically with intoxication, was refused on grounds that it would unduly stress that aspect of the case. This refusal was upheld by the Supreme Court.
We have, however, no such circumstances in the instant case. Since there was evidence that plaintiff's deceased husband was intoxicated at the time of his death, an instruction on intoxication was justified; further, since no reference was made to this aspect of the case in the instructions given on negligence and contributory negligence, there was no overemphasis on this aspect of the case as plaintiff asserts. Finally, plaintiff, again, does not attack the substance of the instruction given.
We find no error on the part of the trial court in giving instructions 8 and 9.
EXPERT WITNESS
Witness Morse inspected the deceased's vehicle in January of 1966. He was then asked for an opinion as to the condition of the exhaust system on the vehicle as of May, 1965--the time of inspection by Hover. Although it was established that he was an experienced exhaust systems mechanic and was a state-licensed inspector of such systems, the evidence also established that he was not an engineer and did not have any special training in chemistry or metallurgy; that he did not understand, nor claim to be able to give any chemical analysis of, the causes of rust or corrosion, or how various chemicals work on various metals to cause such corrosion. He did not know at what rate metals corrode; nor did he know the chemical or metallurgical composition of the exhaust system in question, although he did know that various metals corrode at different rates than others and that one must know the type of metal involved, and several other factors, before the rate of corrosion can be determined.
The court certainly had before it considerable information to indicate that this witness was not qualified to render an opinion on the subject presented to him.
We cannot say, as a matter of law, that the trial court abused its discretion in this determination. The sufficiency of evidence to establish qualifications and knowledge of a witness is a question for the trial court's determination and its decision is not subject to reversal unless it is clearly shown to have been erroneous. Baldwin v. Schipper, 155 Colo. 197, 393 P.2d 363; Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571; City and County of Denver v. Lyttle, 106 Colo. 157, 103 P.2d 1; C. McCormick, Law of Evidence, p. 28.
WAIVER OF COSTS
Plaintiff filed a petition for waiver of costs, together with a brief and an affidavit, indicating indigency. She based her motion on the provisions of 1965 Perm.Supp., C.R.S.1963, 33--1--3. This statute has been just recently discussed in depth by the Colorado Supreme Court in the case of Almarez v. Carpenter, announced on December 14, 1970, Colo., 477 P.2d 792. The statute clearly makes this matter discretionary with the trial court and we cannot say, under the facts in this case, that the court abused its discretion.
Since there was no evidence submitted at trial to establish that the deceased's vehicle was in a defective condition at the time it was purchased from Hover Motors, the other allegations of error cited by plaintiff are not pertinent, and need not be discussed.
Judgment is affirmed.
COYTE and DUFFORD, JJ., concur.