Opinion
Rehearing Denied March 11, 1975.
Page 802
[Copyrighted Material Omitted]
Page 803
Hoffman, McDermott & Hoffman, Daniel S. Hoffman, Denver, for plaintiffs-appellees.
Yegge, Hall & Evans, John R. Trigg, Denver, for defendant-appellant.
COYTE, Judge.
Defendant appeals from a judgment against him in automobile-pedestrian accident case. We affirm.
Plaintiff, a 13-year-old girl at the time of the accident, and two friends were let out of the automobile of an acquaintance on the shoulder of a freeway. They had been given a ride and expected to be let out of the automobile prior to entry into the freeway, but the driver forgot to stop. After he did stop and let them out they decided to cross the freeway instead of using another route to get to a shopping center where they could telephone plaintiff's mother. All three crossed without incident both the eastbound and westbound lanes of the freeway to a V-shaped area between the freeway and an exit ramp. The two other children crossed the exit lane safely. There was conflicting testimony of whether plaintiff entered the exit lane and then returned to the V-area. In any event, she was struck by defendant's automobile while she was in the V-area. She suffered severe injuries and, in trial to a jury, was awarded damages of $150,000.
The action having been tried under traditional negligence principles, the jury instructions on contributory negligence and last clear chance are the object of defendant's contentions of error.
Defendant alleges that since plaintiff was a pedestrian using the freeway in violation of Denver Revised Municipal Code 514.11, the court erred in not finding her contributorily negligent as a matter of law.
Generally it is negligence per se to violate a city ordinance, Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167, and the jury was so instructed; however, neither this, nor any other type of negligence, precludes recovery of damages unless it is the proximate cause of the accident. Reed v. Barlow, 153 Colo. 451, 386 P.2d 979. It is for the trier of fact to determine whether the violation was a proximate cause of the collision, See Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590, and in this regard the jury was correctly instructed that: '(I)f you find such a violation, you may only consider it if you also find that it was a proximate cause of the accident.' Furthermore, the jury was properly instructed in accordance with Colorado Jury Instructions 9:24 as regards the definition of proximate cause. We find no error in the court's submission to the jury of the issues relative to proximate cause.
With the above instructions, the jury was also instructed that: 'A pedestrian not properly on a freeway is not necessarily negligent unless his presence on the freeway is a 'proximate cause' of his injuries as defined herein.' Defendant's contention that this instruction requires reversal is without merit.
Jury instructions are to be considered as a whole. Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 470 P.2d 34. Where one particular instruction is incomplete as to the law, this omission may be corrected by the remaining instructions. Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684. The quoted instruction does not contradict any other instructions, and although technically it is a misstatement of the law, its inclusion was harmless error because whether the violation was or was not negligence is irrelevant in determining the plaintiff's recovery if her negligence was not a proximate cause of he accident. The instructions as a whole are correct.
Defendant also objects to the giving of an instruction on the last clear chance doctrine, but, on the evidence presented, that doctrine could be found applicable and accordingly the instruction was properly given. Independent Lumber Co. v. Leatherwood, 102 Colo. 460, 79 P.2d 1052, states:
'The rule of last clear chance is one to be applied for the analysis or resolution of an extended fact situation into at least two fact situations one of which includes the acts and omissions of the plaintiff that create the condition under which an injury occurs and thus becomes merely a remote cause of it; the other including the acts and omissions of the parties subsequent to the creation of the situation, from which the proximate cause of the injury is to be ascertained. The object of the rule is to determine the proximate cause of an injury to plaintiff . . ..'
Here, there was evidence of negligence by both parties in that the plaintiff was on the freeway and in that defendant saw the children while he was over 200 feet away from them. Plaintiff's negligence does not preclude recovery if defendant had the last clear chance to avoid the accident and did not do so. Colorado & Southern Railway Co. v. Duffy Storage & Moving Co., 145 Colo. 344, 361 P.2d 144. Since there is evidence from which the jury might determine that defendant could have avoided injuring plaintiff, by veering or slowing down, an instruction on the doctrine was properly given. The instruction used was Colorado Jury Instructions 9:18, and as such contained all the necessary elements.
The instruction on the special standard of care for children was also properly given. Again, application of the standard of care for a child is a matter within the province of the trier of fact. Schaffner v. Smith, 158 Colo. 387, 407 P.2d 23. One of the elements of last clear chance, as the jury was properly instructed, is that plaintiff be unable to extricate herself by the exercise of ordinary care from the perilous situation in which her negligence has placed her. In this regard the court correctly gave Colorado Jury Instructions 9:4 so that the jury could determine whether all of plaintiff's actions were those to be expected from a child of her age.
Finally, defendant contends that the award of $150,000 in damages was excessive as a matter of law. The determination of the amount of damages to be awarded is within the sole province of the jury and will not be disturbed on review unless the verdict is grossly and manifestly excessive. Davis v. Fortino & Jackson Chevrolet Co., 32 Colo.App. 222, 510 P.2d 1376.
Here, the plaintiff sustained three fractured ribs, a fracture of the left collarbone, a compound fracture of the upper right leg, which healed in a slightly deformed manner, a dislocated jaw, brain concussion, permanent scars on the abdomen and upper leg, and numerous less major injuries. There was evidence of continued psychological problems after the accident and further evidence that the plaintiff would probably suffer arthritis in the broken leg. The jury award is supported by the evidence and is not grossly and manifestly excessive.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.