Opinion
Oct. 31, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Verdict of $15,000 for plaintiff, who had preexisting permanent injury to his right knee, asserted that, after accident in question, knee had been swelling, filling with liquid and causing him pain and that such condition interfered with performance of his duties as process server and resulted in loss of earnings, was not so large as to indicate that it was product of sympathy or passion and thus was not excessive.
Page 976
Yegge, Hall & Evans, John R. Trigg, Denver, for plaintiff-appellee.
Wolvington, Dosh, DeMoulin, Anderson & Campbell, Byron G. Rogers, Jr., Denver, for defendants-appellants.
DWYER, Judge.
In this action, Ben Lesser sought to recover damages for personal injuries he allegedly sustained in an automobile collision which occurred April 18, 1968, at the intersection of 19th and Lincoln Streets in Denver, Colorado.
Lesser, driving north on Lincoln, entered the intersection at 19th Street and collided with the vehicle driven by Robert Maxwell Kennedy. Traffic at the intersection is controlled by signal lights. The evidence at trial was in conflict as to which driver was properly in the intersection. The issue of liability was submitted to a jury which returned a verdict in favor of Lesser. The jury also assessed Lesser's damages in the amount of $15,000, and judgment in this amount was entered against Robert Maxwell Kennedy and Karen Lee Kennedy, a co-owner of the automobile. We affirm the judgment.
Appellants seek reversal on two grounds: (1) the court erred in giving an instruction which allowed the jury to consider plaintiff's claims of permanent injury or future loss of earnings or impairment of earning capacity as elements of damage; and, (2) the verdict is excessive.
In instructing the jury, the court used Colorado Jury Instructions 6:1, and the instruction given included the following statement:
'If you find that, as a result of the defendants' negligence, the plaintiff will necessarily endure or incur, in the future, physical or mental pain and suffering, or medical expenses, permanent injuries or disability or loss of earnings or impairment of earning capacity, then you shall take these matters into consideration in assessing damages, insofar as such items have been established by the evidence.'
When submitting Colorado Jury Instructions 6:1 to the jury, the court should eliminate any element of damage for which there is insufficient evidence. Stahl v. Cooper, 117 Colo. 468, 190 P.2d 891. Appellants contend that there is no evidence that Lesser suffered any permanent injury or that he would suffer any future loss of earnings or impairment of earning capacity and that it was error to include these elements in the damage instruction.
At the time of his injury in the collision on April 18, 1968, plaintiff had a pre-existing permanent injury to his right knee. This knee sustained an injury in the collision, and required medical treatment. Lesser testified that prior to the accident his knee was working fairly well, but since the accident his knee had been swelling, filling with liquid, and causing him pain. This condition continued up to the time of trial and interfered with the performance of his duties in his occupation as a process server and resulted in a loss of earnings. There is medical testimony in the record that Lesser's pre-existing disability in his knee was aggravated by the injury which he sustained in the collision and that some minimal amount of permanent disability resulted. The evidence in the record was sufficient to authorize the court to instruct the jury to consider Lesser's claim of permanent disability, loss of earnings, or impairment of earning capacity in assessing damages. Since the record justified the court's instruction on damages, it is unnecessary to consider Lesser's argument that appellants' failure to specifically object to the giving of the instruction precludes their claim on appeal that the instruction was erroneous.
The second issue argued by appellants is that the verdict of the jury is manifestly and grossly excessive. Quoting from Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278, our Supreme Court has stated the applicable principle in Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185:
"The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries."
The verdict of $15,000 returned by the jury is not, under the evidence in the record, so large as to indicate that the verdict was the product of sympathy or passion on the part of the jury, and it is not excessive as a matter of law. See Gibbons v. Choury, 169 Colo. 267, 455 P.2d 649.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.