Opinion
No. 15,487.
Decided October 14, 1946.
An action for damages for personal injuries allegedly resulting to plaintiff from drinking coca-cola from a bottle in which there was ground glass. Judgment for defendant.
Affirmed.
1. APPEAL AND ERROR — Specification of Points. Where on review of a judgment, the record is devoid of a "specification of points," required by rule 111 (f), R.C.P. Colo., the judgment will be affirmed.
Error to the District Court of Arapahoe County, Hon. Henry S. Lindsley, Judge.
Mr. JOHN E. FITZPATRICK, for plaintiff in error.
Mr. IVOR O. WINGREN, Mr. EARLE F. WINGREN, Mr. C. E. WAMPLER, for defendant in error.
THESE parties appear here in the same order as in the trial court and are hereinafter designated as there.
Plaintiff sought $10,250 actual and $10,000 exemplary damages for alleged injuries said to have arisen from ground glass contained in a bottle of coca-cola sold by defendant and consumed by plaintiff. The cause as tried was based upon an allegation of negligence. A jury returned a verdict against her and she obtained a new trial on the ground of newly discovered evidence. On the second trial she suffered a nonsuit and to review the judgment thereupon entered she prosecutes this writ.
The record before us is admittedly devoid of assignments of error or specification of points as required by Rule 111 (f), p. 357, '35 C.S.A., vol. 1. Plaintiff seeks to justify this omission on the ground that the only ruling in question is the order granting the nonsuit. Even so, her position is without support. The argument of her counsel is that under the doctrine of "res ipsa loquitur" she was entitled to go to the jury. But since her right to do this depended upon the sufficiency of the evidence to support the doctrine, the only disputed point in the case, assignment or specifications was indispensable.
We affirm on the foregoing ground with less reluctance because the first verdict was against plaintiff on the facts and the record on the second trial pretty clearly indicates that her cause was without merit and that the ruling of the trial court, in all probability, was correct.
The judgment is accordingly affirmed.
MR. JUSTICE HILLIARD, MR. JUSTICE JACKSON and MR. JUSTICE STONE concur.