Summary
finding no error for failing to give instruction on rear-end collision doctrine when defendant presented evidence that an accident would not have occurred but for the unforeseeable and extra-hazardous icy condition on the portion of the roadway where the accident occurred
Summary of this case from Kendrick v. PippinOpinion
June 17, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1154
George A. Hinshaw, William R. Sprague, Aurora, for plaintiffs-appellants.
Tilly & Graves, Charles Q. Socha, Denver, for defendant-appellee.
SMITH, Judge.
Plaintiffs, Darrel L. Hetrick and Dixie L. Hetrick, sought to recover damages for personal injuries allegedly sustained by them when a car driven by defendant collided with the rear of the Hetrick's car. Trial was to a jury which returned separate verdicts in favor of defendant and against both plaintiffs. Plaintiffs appeal contending that error was committed by the trial court in the giving of instructions to the jury, in failing to direct a verdict on the issue of liability, and in failing to grant a new trial based upon the fact that plaintiffs' counsel was ill during the trial. We affirm.
The basic facts surrounding the accident are, as follows: The accident occurred on a patch of ice on the eastbound lane of East Colfax at its intersection with Akron Street in Aurora. Plaintiffs had stopped to avoid hitting the automobile in front of them, which had come to a sudden stop, and defendant slid directly into the rear of plaintiffs' car. Although road conditions on the day of accident generally were snow packed, slushy and icy in spots, cars travelling over East Colfax had worn paths through the accumulated ice and snow. Both Darrel L. Hetrick and defendant testified that they had driven some distance on Colfax and that they had encountered no accumulations of ice or snow which had made stopping difficult. Moreover, while contrary evidence was presented, defendant testified that there was an unusual amount of slush and ice at the point of impact. Defendant had many years of experience driving under conditions similar to those existing on the day of the accident and had already driven a considerable distance that day.
I
Plaintiff first argue that the giving of instructions Nos. 1 and 18 amounted to instructing on 'unavoidable accident', which procedure was disapproved in Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933. We disagree.
Instruction No. 1 is generally a 'theory of the case' instruction and states in pertinent part:
'The defendant denies that she negligently operated her motor vehicle at said time and place and further claims that the accident was caused by an unforeseeable and uncontrollable circumstance consisting of an extra-hazardous icy condition at the site of the collision which she could not reasonably anticipate under the circumstances then existing. . . .'
It was defendant's theory and defense that the circumstances existing at the site of the accident were unforeseeable, not subject to her control and could not have been reasonably anticipated. She reasoned therefore, that she did not fail to act as a reasonable and prudent driver. Instruction No. 18 directs the jury to find for the defendant if her theory of the case is established and if she otherwise acted as a reasonable and prudent person under the circumstances. These two instructions do not constitute the 'unavoidable accident' instruction disapproved in Buckskin Joe's, but rather, as set forth herein, instruct on the sudden emergency doctrine.
There was evidence, albeit conflicting, which supports defendant's theory. Since such evidence was presented, defendant was entitled to have her theory of the case presented to the jury. Renell v. Argonaut Liquor Co., 148 Colo. 154, 365 P.2d 239; Denver City Tramway Co. v. Doyle, 63 Colo. 500, 167 P. 777.
II
In the alternative, plaintiffs argue that instructions Nos. 1, 16 and 18 instruct on the sudden emergency doctrine and that their composite effect is to confuse the jury and place undue emphasis on the theory of defendant, resulting in prejudice to plaintiffs. Unnecessary repetition in a charge to the jury is bad practice and is to be avoided; however, it is not, on its face, reversible error, Pletchas v. Von Poppenheim, 148 Colo. 127, 365 P.2d 261; Liutz v. Denver City Tramway Co., 54 Colo. 371, 131 P. 258. See Clayton v. Hepp, 31 Colo.App. 385, 504 P.2d 1117 and Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406, unless it reasonably appears that the jury was misled. Such a determination involves a study of all the instructions taken together, as to both their substance and their relationship to one another in the order given. Dick v. Schoener, 120 Cal.App.2d 230, 260 P.2d 965.
Instruction No. 1 was drafted as an introductory instruction; it only presents the parties' respective theories of the case and is not directive in any sense. Instruction No. 16 is a general legal definition of the doctrine of sudden emergency, and an instruction on that doctrine has been held to be proper in rear end accident cases where there is evidence to support that theory of defense. Cudney v. Moore, 163 Colo. 30, 428 P.2d 81. Instruction No. 18 indicates the proper method of application of the law, as set forth in Instruction No. 16, to the specific facts surrounding the accident. Each of these instructions serves a different purpose. While it might have been better practice to have combined them into one coherent all-inclusive instruction, we cannot conclude that, merely because they stand apart, they constitute undue repetition of the doctrine of sudden emergency resulting in prejudice of the jury in favor of defendant.
III
Plaintiffs also contend that the court erred in denying their motion for a directed verdict of liability and in submitting the following Instruction No. 15 to the jury:
'The happening of an accident does not raise any presumption of negligence on the part of either the plaintiff or the defendant.'
The occurrence of a rear end accident, in certain circumstances, gives rise to a presumption of negligence on the part of the following driver. Denver Tramway Corp. v. Burke, 94 Colo. 25, 28 P.2d 253. However, this presumption only arises where: (1) The evidence of the occurrence of such an accident is accompanied by prima facie evidence of defendant's negligence: (2) the evidence reveals no facts showing negligence on the part of plaintiff; and (3) no facts are presented which would tend to absolve the defendant of negligence. Dilts v. Baker, 162 Colo. 568, 427 P.2d 882; See McCall v. Roper, 32 Colo.App. 352, 511 P.2d 541.
Here, although contrary testimony was presented, defendant presented evidence which, if believed by the jury, was sufficient to support the conclusion that the accident would not have occurred but for the unforeseeable and extra-hazardous icy condition on the portion of the roadway where the accident occurred. This evidence was sufficient, in the totality of the case, to prevent any presumption of negligence from arising, under the third test in Dilts v. Baker, Supra, and therefore, the trial court acted properly in denying plaintiffs' motion for a directed verdict. Where, as here, plaintiffs' counsel did not tender and the court, having admitted evidence which tended to absolve defendant of negligence, did not give an instruction on the presumption of negligence arising from a rear end accident, C.J.I. 11:11, it was harmless error to have given Instruction No. 15.
IV
Plaintiffs' counsel, in support of the motion for a new trial, submitted an affidavit from a physician stating that counsel was suffering from such severe headaches that he was unable to present a vigorous prosecution of the case. It does not appear, however, that a continuance was requested or that plaintiffs made any objection to their counsel acting for them during the trial. The record does not disclose any acts or omissions of counsel in the conduct of the trial which, assuming they resulted from counsel's disability, would warranty the granting of a new trial. The fact that plaintiffs waited until after a verdict had been rendered against them before requesting relief on this basis does not commend their application to the favorable consideration of this court. The trial court had the opportunity of judging the competency of plaintiffs' attorney, which this court has not, and, there being no showing of an abuse of discretion, its determination of this issue will not be overturned. Fitch v. Ellison, 15 Colo. 418, 24 P. 872.
Judgment affirmed.
RULAND and VanCISE, JJ., concur.