Opinion
May 18, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 507
Theodore D. Schey, Jr., Longmont, J. Donovan Stapp, Denver, for plaintiffs in error.
Wormwood, Wolvington & Dosh, Jack Kent Anderson, Dever, for defendants in error.
ENOCH, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This is a wrongful death case arising out of an automobile accident. The parties appear here in the same position as in the action below. Trial was to a jury.
The action from which this appeal arises was based on three separate claims: (1) The first claim was brought solely on behalf of the minor plaintiff, Tammy Lynne Jilson, under the provisions of the Wrongful Death Statute; (2) The second claim for funeral expenses was brought by the plaintiff Muriel Jillson, as the surviving widow of the deceased; and (3) The third claim, also by the widow, was for damages to the vehicle which was being driven by the deceased, Byron Harvey Jillson, at the time of the accident. Defendants' motion to dismiss the second and third claims was granted upon order of the trial court in a hearing prior to trial. The jury rendered a verdict against the plaintiffs on the wrongful death claim.
Two of the main issues raised at trial were whether the deceased was contributorily negligent in failing to have his car lights on and in driving excessively fast. Both issues were vigorously contested. The accident in question occurred on November 30, 1965, at approximately 5:00 p.m., at the intersection of West 89th and Nelson Road in a semi-rural area of Boulder County. The intersection was opened without visital obstructions. The sun had set at 4:36 p.m., approximately 25 minutes prior to the accident. The weather was clealr and road conditions were good.
The deceased and his passenger, Gilroy Fragale, had left the Beech Aircraft Co., their place of employment, at 4:42 p.m., and were headed east on Nelson Road. Immediately prior to the accident, they were being followed by another automobile occupied by three fellow Beech employees, on of whom was Lynn King, who testified as an eyewitness on behalf of the plaintiffs.
Defendant Julia Seveland and her three children were returning in her car from a grocery store in Longmont. She was proceeding west on Nelson Road and was in the process of making a left turn to go south on 89th Street when the collision occurred. She was being followed in another car by Peter Coursen, who testified at trial as an eyewitness on behalf of defendants.
The investigating police officer, testifying on behalf of the plaintiffs, said that he received a call notifying him of the accident at 5:03 p.m. Immediately prior to that notification, he was driving with his headlights off. He expressed his opinion that it was still possible to see without headlights, but also stated that it was considerably darker when he arrived on the scene at 5:10 p.m. The officer testified at length as to his observations made at the scene of the accident and his opinion as to how the accident occurred.
Fragale did not remember if the deceased had his headlights on immediately before the accident, but expressed his opinion that he did not think they were necessary. Fragale testified that the deceased had engaged in a drag race with the car occupied by the other Beech employees about two miles prior to the place where the accident occurred. He estimate the the deceased's vehicle was going 75 m.p.h. and testified that he warned the deceased to slow down immediately prior to the accident.
King was a passenger in the automobile which was allegedly the other vehicle engaged in the drag race. He testified that the deceased's automobile had passed them after they had previously passed the deceased and that they were following approximately 75 to 100 yards behind the deceased's automobile. He estimated they were going 60 to 65 m.p.h., but admitted that the speedometer in their automobile was not working. He did not know whether the headlights were on in the automobile in which he was riding, nor whether the deceased's headlights were on.
Coursen, who was following the Seveland automobile, described the scene as dark enough to warrant the use of headlights. He recalled that the rest of the traffic on the road had their headlights on and that he too had his on. Coursen testified that as Julia Seveland began to make her left turn, he saw the deceased's automobile appear, coming from the west, traveling without headlights and at a high rate of speed, which he estimated at 80 m.p.h.
I
The plaintiffs assert the trial court erred in failing to direct a verdict in their favor at the conclusion of all the evidence. In so doing, they claim that the evidence conclusively showed defendant's negligence and that defendants failed to prove that deceased was contributorily negligent. We do not agree and hold the trial court was correct in its ruling. When viewed in the light most favorable to the defendants, the evidence demanded that the case be submitted to the jury.
II
Error is assigned in that the court refused to allow plaintiffs' counsel on cross-examination of Fragale to pursue the question of whether Fragale had a personal interest which might influence his testimony. We find no merit in this contention. Plaintiffs' attorney was attempting to attack the credibility of Fragale's testimony by showing that Fragale had consulted with his attorney as to a possible claim against the Jillson estate. The trial court did not improperly limit this line of questioning. It merely sustained an objection based on hearsay and privilege to the question of whether Fragale's attorney advised him of what he might have to show in order to maintain an action against the estate. Plaintiffs' attorney himself failed to pursue the matter further.
III
Plaintiffs claim the trial court erred in refusing to give certain of their requested instructions. We have examined the instructions given by the trial court and find that they were proper statements of the law relating to this case.
Furthermore, counsel for the plaintiffs made no objection to the trial court's refusal to give these tendered instructions when the opportunity to do so was presented prior to the submission of the accepted instructions to the jury. We note that a record was made objecting to the rejection of the three instructions some two hours after the case was submitted to the jury. Untimely objections to instructions and making delayed records on the instructions after they are read to the jury is not in compliance with R.C.P.Colo. 51. This procedure has been disapproved by the Supreme Court. See, Roblek v. Horst, 147 Colo. 55, 362 P.2d 869; Thompson v. Davis, 117 Colo. 82, 184 P.2d 133.
IV
Plaintiffs also urge, as grounds for reversal, that the trial court should have granted a new trial based upon an affidavit by one of the jurors to the effect that during deliberation he looked out of the window of the jury room at approximately 4:55 p.m., and observed the lighting outside. The affidavit further alleged that this juror subsequently remarked to one or more other members of the jury that, 'it appeared to be quite dark at that time, and that in all probability headlights should have been used by any moving vehicle operating in that particular vicinity at that time and place.'
The plaintiffs argue that by this action, the jury went outside the record in reaching its verdict in that the conditions of time and place were not identical. More specifically, the plaintiffs allege that the lighting conditions at 4:55 p.m. on November 19, 1968, the date of trial, at the Boulder County Hall of Justice, were not identical to those at the scene of the accident at 5:00 p.m. on November 30, 1965.
The plaintiffs rely on Butters v. Dee Wann, 147 Colo. 352, 363 P.2d 494, as support for their assertion. That case was also an action for wrongful death, resulting from an automobile accident. There the Supreme Court held an extra-judicial investigation made by a juror was so improper and prejudicial that the jury's verdict had to be reversed and remanded for a new trial. The juror in that case made a telephone call to the deceased's employer during the course of the trial and inquired as to the deceased's drinking habits, his intoxication on other occasions and the revocation of his driver's license. All such matters had been specifically ruled on by the court as being incompetent and inadmissible. That juror not only delved into extraneous and immaterial evidence relating to questions not at issue, but also violated the prohibition of the court that such issues could not be considered by the jury. As such, the circumstances in Butters, supra, are clearly distinguishable from those found in this case where the allegation is that there was misconduct during the jury's deliberations. We find the circumstances presented in this case to be more similar to those found in Noell v. Interstate Motor Lines, Inc., 166 Colo. 494, 444 P.2d 631, also a wrongful death action arising out of an automobile accident in which the trial court refused to grant a new trial on the basis of a juror's affidavit seeking to impeach her own verdict. There the juror claimed she was coerced into giving approval to the verdict and that one of the other jurors had failed to disclose a prejudice in his Voir dire examination. In affirming the jury's verdict, the Supreme Court relied on Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533, which holds that arguments, discussions and reasons made and advanced by members of the jury among themselves while considering their verdict may not be shown by affidavit to impeach a verdict returned by them.
The plaintiffs further allege error on the part of the trial court in its failure to conduct an investigation into the alleged misconduct of the jurors. We do not agree. As we have determined in our review of the alleged misconduct, the juror's affidavit contains nothing that justified the granting of a new trial and likewise raised no material issues which would have merited an independent investigation by the court.
V
Plaintiffs' last assignment of error is that the trial court erred in granting defendants' motion to dismiss the plaintiffs' claims as to deceased's funeral expenses and property damage to the vehicle. We hold that if there were any error, it was rendered moot in light of the jury's verdict that there was no liability on the part of the defendant.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.