Opinion
Long, Jaudon & Johnson, Frank L. McGuane, Jr., Denver, for plaintiff in error.
McCarthy & Reneau, Gene D. Reneau, Thomas E. McCarthy, Denver, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute.
This case arose out of an automobile accident on the Valley Highway south of Denver. The plaintiff Hock slowed his car after missing his turnoff and was hit in the rear by the defendant, Hickman. Hock brought this action alleging that Hickman was negligent. Hickman denied this and alleged that the injuries complained of were the result of Hock's own negligence and counterclaimed for the injuries he had sustained. The jury found for the plaintiff and Hickman brings this appeal. Due to errors in the instructions we reverse and remand for a new trial.
There are several questions presented on appeal.
1) Did the trial court err in not directing a verdict for the defendant? The answer is in the negative. A review of the record shows that there were several material facts in dispute. The Supreme Court held in Blount v. Romero, 157 Colo. 130, 401 P.2d 611:
'It is only in the clearest cases, where the facts are undisputed and it is plain that all intelligent men can draw but one inference from them, that the question is ever one for the court.'
These conditions not being met in this instance it would have been improper for the court to direct a verdict.
2) Did the trial court err in giving the jury an instruction on lost future wages? The answer is in the negative. A review of the record shows that there was evidence of continuing disability and the probable loss of future wages. It was proper for the jury to be instructed on this point.
3) Did the trial court err in allowing an expert witness to testify as to the speed of the plaintiff's car at the time of impact?
The answer is again in the negative. The opinion objected to was given in response to a hypothetical question asked by Hock's attorney. Hickman does not question the expert's qualifications nor does he object to the working of the question.
After the hypothetical situation was defined the witness was asked for his opinion as to the speed of defendant's auto at the moment of impact with plaintiff's car. The witness gave his answer without objection. He was then asked for his opinion as to the speed and direction of travel of plaintiff's car at the moment of impact. Defendant then objected on the ground that no proper foundation had been laid to show the basis on which the witness had arrived at his opinion.
Here, again, the record fails to support the allegation of error. The witness stated several elements relied upon in reaching his opinion. Hickman's attorney on appeal (who did not represent him at trial) asserts several additional items that should have been taken into consideration by the expert, but apparently were not. The objection in effect attacked the knowledge of the expert. Determination of this issue rests in the discretion of the trial court and will not be reversed unless clearly erroneous. Starkey v. Bryan, 166 Colo. 43, 443 P.2d 314. See Ison v. Stewart, 105 Colo. 55, 94 P.2d 701. These additional elements, if lacking, were proper subjects for cross-examination to attack the weight to be accorded to the opinion, but were not proper grounds for excluding the testimony. The jury was properly instructed as to the weight to be given expert testimony.
4) Did the trial court err in refusing to give an instruction tendered by defendant which quoted the statute relative to driving at reduced speed on state highways? The answer here is in the affirmative.
The accident occurred on Highway I--25 a four-lane, limited access road, just south of the Belleview Avenue interchange. One of the strenuously contested issues was the speed of plaintiff's car. According to the record, plaintiff at various times estimated his speed at anywhere from fifteen to thirty-five miles per hour. The expert said plaintiff was going forty. Defendant claimed that plaintiff was either stopped or backing up. The posted maximum speed was seventy miles per hour. There was at that time no posted minimum.
The statute in question, C.R.S.1963, 13--5--35(1), reads:
'No person shall drive a motor vehicle on any highway at such a slow speed as to impede or block the normal and reasonable forward movement of traffic, except when a reduced speed shall be necessary for safe operation of such vehicle or in compliance with law.'
One of the purposes of this statute was to protect against the type of accident which occurred here and defendant was a member of the group of persons the statute was intended to protect. There was evidence which, if believed by the jury, could warrant a finding that the statute had been violated. The statute therefore was pertinent to the facts and issues in this case. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64. The instruction should have been given unless the instructions taken as a whole correctly state all the necessary law to the jury. Montgomery Ward & Co. v. Kerns, Colo., 470 P.2d 34. A review of the instructions discloses several significant omissions. Although these errors were not noted in the trial court, we cannot overlook them when considering the instructions as a whole in order to determine whether the failure to include the requested instruction constitutes reversible error.
The instructions as given defined negligence, contributory negligence and proximate cause. However, nowhere was the jury instructed that it had to find that defendant's negligence was a proximate cause of the injury before it could find him liable. Nor was the jury instructed that if plaintiff was contributorily negligent and if such negligence was a proximate cause of the injury that then defendant would not be liable to plaintiff.
Further, although one of the instructions quoted three pertinent sections of the statute there was no instruction given stating the effect of a violation of the statutes if such violation was a proximate cause of the accident.
The failure to include the requested statute in the instructions, coupled with the omissions above noted, had the effect of depriving the jury of any basis upon which to consider the defense of contributory negligence and was prejudicial to the defendant. See Stahl v. Cooper, 117 Colo. 468, 190 P.2d 891, and Reed v. Barlow, 153 Colo. 451, 386 P.2d 979.
On retrial all of these omissions will be avoided by careful use of the Colorado Jury Instructions as now required by C.R.C.P. 51.1. See Colorado Jury Instructions 9:1 and 9:11.
The judgment is reversed and the cause remanded for a new trial on all issues.
ENOCH and PIERCE, JJ., concur.