Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 765
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Asst. Atty. Gen., John E. Bush, Aurel M. Kelly, Asst. Attys. Gen., Denver, for plaintiff in error.
Hoyman & Starlin, Dwane L. Starlin, Denver, for defendant in error.
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.
The parties appear here in reverse order of their appearances below and will be referred to by their trial court designations. The matter on appeal is the jury's verdict in an action for personal injuries arising out of a two-car intersection collision.
Shortly before noon on the day of the accident, plaintiff was driving north on Grand Street in Delta, Colorado, a through street, and was approaching the intersection of Grand with Third Street. As he proceeded through that intersection, his vehicle was struck on the left front fender by one driven by defendant; it spun around and careened off the roadway onto a private lawn. Plaintiff did not see defendant until almost the instant of impact.
Defendant, at that time performing his duties as an employee of the Colorado Department of Revenue by conducting a moving surveillance on an unidentified third party, stated that he approached Grand on Third, from the west; momentarily stopped at the stop sign on Third favoring Grand; looked both ways and saw nothing; and then proceeded into the intersection; whereupon he collided with plaintiff.
Weather conditions at the time were clear, and there were no physical obstructions to visibility at the accident scene. Defendant did testify, however, that the bright sunlight may have adversely affected his vision.
As a result of the collision, plaintiff was injured and brought suit. The jury returned a verdict for plaintiff, from which defendant now appeals, asserting, among other things, error in certain of the instructions given to the jury.
One of the instructions contended to be erroneous by defendant is the Court's instruction given on contributory negligence, which stated:
'You are instructed that contributory negligence is such negligence on the part of the plaintiff as helped to produce the injuries complained of, and without which they would not have occurred. Such negligence need not have been the sole cause of the injuries, but merely such that but for the negligence of the plaintiff they would not have occurred.' This instruction, although a correct definition of contributory negligence (as was defendant's tendered instruction, which was refused) in no way advised the jury (as did defendant's tendered instruction) of the legal effect of contributory negligence: that is, it did not inform the jury that if it found plaintiff contributorily negligent, it must render verdict for defendant. (See Colorado Jury Instructions, 9:1 and 9:15.) This omission was not cured by the other instructions given.
Although plaintiff now argues that there was no evidence to warrant a contributory negligence instruction in the first place, and that, therefore, failure to given the proper instruction was of no legal consequence, we note that he did not raise this issue at trial by any objection, apparently conceding that the instruction was proper on the evidence presented. There was sufficient evidence to support this instruction and the court properly presented the matter to the jury.
Accordingly, we hold that the trial court's failure to instruct the jury on the legal consequences of contributory negligence was erroneous, as tantamount to a failure to instruct on contributory negligence at all.
Although the erroneous instruction on contributory negligence requires reversal of this case and remand for a new trial, for the purpose of clarifying any problems which might arise on retrial, we take note of one other instruction contested by defendant.
Defendant objected to the court's giving an instruction on permanent injury or disability, on grounds that there was no evidence of such in the record. We disagree with this contention.
The testimony in this case as to future pain and suffering and permanent injury or disability was close in content to that found in CeBuzz, Inc., v. Sniderman, Colo., 466 P.2d 457, in which the testimony was found sufficient to warrant an instruction on permanent injury or disability. CeBuzz, supra, indicates that the contested instruction on permanent injury or disability in the instant case was proper.
We do not discuss any of defendant's other assignments of error, since they have been rendered moot by our ruling on the contributory negligence instruction. However, although we realize that the Colorado Jury Instructions had not yet been adopted at the time the original trial was held in this case, we recommend that the applicable instructions from that approved collection be used at retrial.
Judgment is reversed and the cause is remanded for new trial.
DWYER and ENOCH, JJ., concur.