Opinion
Williams, Erickson & Wallace, Wayne D. Williams, R. Neil Quigley, Denver, for plaintiffs in error.
George T. Ashen, Denver, for defendants in error.
ENOCH, 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.
This is an action for damages for personal injuries sustained in a two-car collision at a controlled highway intersection. The parties appear here in reverse of their order of appearance below and will be referred to as they appeared at trial or by name.
On a clear day in July 1967, the plaintiff, Urban Atencio, was driving his automobile northerly on Colorado Highway 17 in Saguache County. His wife, Bernadette Atencio, a joint owner of the car, was riding in the front seat. Carolyn, the three-year-old daughter of Mr. and Mrs. Atencio, also a passenger, was a plaintiff below but is not involved in this appeal. Defendant, Elizabeth W. Shellabarger, was driving a car east on Saguache County gravel road No. 62. Her husband, defendant M. A. Shellabarger, was not in the car but was the owner of the car.
As Atencio was traveling at a speed of 60 to 65 m.p.h. on the paved highway, he observed to his left that the defendants' car was about a quarter of a mile from the highway intersection. There was no obstruction to the vision of either party. Atencio slackened his speed to 45 to 50 m.p.h. and observed the defendants' car on at least two other occasions as it approached the intersection. The last time he looked to the left, he noticed that defendants' car was slowing down, as if to stop at the stop sign. He then stated that, 'I looked to my right and up ahead and before we knew it, we collided.' Atencio did not see the defendants' car enter the intersection. When he did see the car, it was directly in front of him and he struck the defendants' car at the center of the right side.
The defendants denied any negligence by Mrs. Shellabarger and alleged that the injuries and damages were caused by the negligence or the contributory negligence of Urban Atencio.
At the conclusion of plaintiff's evidence, the defendants moved for a directed verdict as to Mr. and Mrs. Atencio because of the alleged contributory negligence of Mr. Atencio which was allegedly imputed to Mrs. Atencio as a co-owner of the car. This motion was denied and an identical motion by defendants was denied at the close of defendants' evidence. The court denied the motions on the ground that there were issues of fact to be determined by the jury. The jury returned the following verdicts for the plaintiffs: Mr. Atencio, $19.50; Mrs. Atencio, $8,929.50; and Carolyn, $54.50.
In this appeal defendants allege seven errors, two of which are directed to rulings of the court during the trial and five relate to jury instructions.
I
Was Mr. Atencio guilty of contributory negligence as a matter of law?
Defendants' main argument in this appeal is that the trial court should have ruled as a matter of law that Mr. Atencio was guilty of contributory negligence. As authority for this contention, defendants rely on Bennett v. Hall, 132 Colo. 419, 290 P.2d 241. That case is quite similar, except there was no stop sign at the intersection as we have in the case before us now. The Supreme Court there approved the trial court's action in determining that the plaintiff was guilty of contributory negligence as a matter of law. However, the rule of the Bennett case was criticized and strictly limited by the pronouncement of the Supreme Court two years later in Kendall Transportation v. Jungck, 136 Colo. 339, 316 P.2d 1052. See, White v. Shawcroft, 161 Colo. 391, 422 P.2d 48; and Atencio v. Torres, 153 Colo. 507, 385 P.2d 659. The present rule is that if there is any conflict in the evidence, the issue of contributory negligence is one for the jury or for the trial court sitting without a jury. Kendall Transportation v. Jungck, Supra, Rigot v. Conda, 134 Colo. 375, 304 P.2d 629; and Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861. The court was correct in denying defendants' motion for a directed verdict on this issue.
II
Did the court err in restricting cross-examination of Mr. Atencio on the question of his apprehension regarding whether or not the defendants' car was going to stop?
In the cross-examination of Mr. Atencio by defendants' counsel, the court sustained two objections to questions concerning Mr. Atencio's apprehension over the movement of the defendants' car. The court did not, as alleged by defendants, restrict the cross-examination by these rulings. The record shows that both objections were to the form of the question and not the substance. The court even suggested that the question be rephrased, but no effort was made to do so. There was no error in these rulings.
III
Did the court err in failing to instruct that if the jury found contributory negligence on the part of Mr. Atencio, neither he nor his wife could recover?
At the close of the evidence, the court prepared 17 instructions which were submitted to counsel for their objections or approval. The record shows that defendants' counsel made no objection. Under R.C.P.Colo. 52, failure to object to the giving of instructions prevents the error from being raised on appeal. Furthermore, the objection must be specific and not general in nature. Sharoff v. Iacino, 123 Colo. 456, 231 P.2d 959.
In Scheer v. Cromwell, 158 Colo. 427, 407 P.2d 344, the Supreme Court further commented on the effect of R.C.P.Colo. 51, stating:
'* * * Counsel has the duty to examine the instructions, and his failure to detect errors and call the trial court's attention to them ordinarily operates as a waiver of the objection. Gilligan v. Blakesly, 93 Colo. 370, 26 P.2d 808.'
Defendants' counsel tendered his own instructions 1 through 9, but did so without comment. Thus, the trial court was not then advised as to the necessity of giving any of the tendered instructions. Further, in failing to specify the reasons why the individual tendered instructions should be given, there is no record now for this court to review. The time for argument in support of tendered instructions is prior to the instructions being given to the jury and not to be raised for the first time in the motion for new trial or on appeal. Portland Gold Mining Co. v. O'Hara, 45 Colo. 416, 101 P. 773.
For the reasons above stated, this alleged error in the instructions is not properly before this court for review. However, we feel that additional comment is needed due to the unusual proceedings which took place during the reading of the instructions to the jury. As staed by counsel in their briefs, and supported by the record, the trial judge called both counsel to the bench between the reading of the 16th and 17th instruction. A brief conference was held out of the hearing of the jury, following which the court completed the reading of the instructions. No record was made of the substance of the conference then or at any later time. In the briefs presented to this court, counsel states that in this conference, the judge indicated that he realized for the first time that the instruction on contributory negligence did not contain a clause pertaining to the effect of contributory negligence. However, an appellate court must review an alleged error on the basis of the record and not on arguments of counsel presented in the appellate briefs. Laessig v. May-D & F, 157 Colo. 260, 402 P.2d 183; Lambert v. Haskins, 128 Colo. 433, 263 P.2d 433.
Assuming such was the substance of the conference, the record shows that counsel for the defendants made no effort to correct the instruction. In fact, when the omission was brought to his attention by the judge, he neglected to take action and thereby consented to the omission. Counsel cannot remain silent, await the outcome of the trial and then, if an unfavorable result is obtained, raise the alleged error for the first time in the motion for new trial.
We are not unmindful that the Supreme Court of this state, as well as that of many other states, has established two seemingly divergent views as to who has the duty to see that the instructions given to the jury are correct. See, Scheer v. Cromwell, Supra; Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674. Without attempting to reconcile this apparent conflict, we hold that the trial judge fulfilled his duty under the unique circumstances presented in this case. IV
The other alleged errors relate to the trial court's refusal to give certain instructions tendered by defendants. These alleged errors are not properly before this court for review since these instructions were merely tendered to the trial court in a group without comment. The Supreme Court decided this same issue in Portland Gold Mining Co. v. O'Hara, Supra, stating:
'The fifth to twenty-ninth, inclusive, being 25 errors assigned, relate to the refusal of the trial court to give the 25 instructions offered by the appellant. These alleged errors cannot be considered because no sufficient objection was raised at the time of their refusal. * * * The particular instruction which it was proper to have given, if any, should have been clearly pointed out, and the objection specifically made to the refusal of the court to give that instruction. * * *'
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.