Opinion
No. 71-391
Decided June 13, 1972. Rehearing denied July 5, 1972.
Personal injury action resulting from two-car intersection accident. Following directed verdict as to liability, jury awarded plaintiff damages of $14,000. Defendants appealed.
Reversed
1. DAMAGES — No Evidence — Loss of Earnings — Impairment — Earning Capacity — Error to Instruct. In personal injury action where record contains no evidence on which the jury could base an award of damages for any loss of earnings or impairment of earning capacity which the plaintiff might suffer in the future, it was error to instruct the jury on these elements of damages.
2. AUTOMOBILES — Intersection Accident — Defendant — Ran Red Light — Plaintiff — Failure to Anticipate — Not — Contributory Negligence. In personal injury action arising from two-car intersection accident, where the evidence was overwhelming that defendant had run a red light, plaintiff's failure to anticipate such a driving violation did not constitute contributory negligence.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Bruno and Bruno, Frank A. Bruno, H. D. Reed, for plaintiff-appellee.
White and Steele, Lowell M. Fortune, for defendants-appellants.
This is a personal injury case. Gloria Kolb and Norman Walton were involved in a two-car accident at the intersection of Franklin Street and East 14th Avenue in Denver. Mr. Walton thereafter brought a suit for damages against Mrs. Kolb and her husband, alleging that Mrs. Kolb was negligent in the operation of the family car. Trial was to a jury. At the conclusion of all the evidence, the trial court directed a verdict in favor of plaintiff on the issue of liability and submitted the issue of damages to the jury. A verdict of $14,000 was returned for plaintiff. Defendants appeal from the judgment entered on this verdict. We reverse.
I.
Defendants contend the trial court erred by including in damages instruction No. 6 the question of plaintiff's future loss of earnings or impairment of earning capacity. We agree.
[1] Before an award of damages for future earnings or impairment of earning capacity can be sustained, there must be some evidence in the record upon which such an award can be based. J.C. Penney Co. v. Brown, 155 Colo. 212, 393 P.2d 575. We have carefully examined the record of this trial and find nothing in the evidence on which the jury could base an award of damages for any loss of earnings or impairment of earning capacity which the plaintiff might suffer in the future. It is conceivable that the jury included in its verdict an amount for future loss of earnings or impairment of earning capacity for which there was no support in the evidence. We cannot say that the error of the court in permitting the jury under instruction No. 6 to speculate upon the loss of future earnings and earning capacity did not prejudicially affect the rights of the defendants.
II.
Defendants next contend that the trial court erred in refusing to allow them to introduce evidence of another automobile accident in which plaintiff was involved subsequent to the accident in question. Contrary to defendants' contention, the record discloses that they were given ample opportunity to prove plaintiff's injuries were caused, or contributed to, by the second accident. Only after defendants were unable to establish any connection between plaintiff's injuries and the second accident did the trial court preclude further inquiry into the happening of the second accident. Under these circumstances, this was not error.
III.
[2] Defendants also contend that, since there was some evidence plaintiff failed to keep a "proper lookout," the trial court erred in striking their defense of contributory negligence at the conclusion of all the testimony. Defendants' argument is contrary to the principle that, in the absence of reasonable grounds to think otherwise, one is not negligent in failing to anticipate that another person may violate applicable laws and regulations. Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019; Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733. The evidence was uncontradicted that plaintiff, going east on 14th Avenue, entered the intersection on a green light and had proceeded over half the distance through the intersection when the right front side of his vehicle was hit by defendant's vehicle which had entered the intersection from Franklin Street going north. In view of the physical facts and the testimony of witnesses relating to an admission by defendant at the scene, the evidence is overwhelming that Mrs. Kolb ran a red light. Plaintiff's failure to anticipate such a driving violation did not constitute contributory negligence.
IV.
Defendants' final allegation of error is that they were denied the right to cross-examine Mrs. Kolb after she had been called by plaintiff as an adverse witness. We find no merit in this allegation. The record discloses that defendants' counsel extensively cross-examined Mrs. Kolb. The only objection made during the cross-examination was to a question by which counsel was attempting to obtain a self-serving declaration. This objection was properly sustained.
Due to the trial court's error in the damages instruction, the judgment is reversed and cause remanded for a new trial on the issue of damages only.
JUDGE COYTE and JUDGE PIERCE concur.