Opinion
No. 71-332
Decided June 27, 1972. Rehearing denied July 25, 1972. Certiorari denied September 5, 1972.
In personal injury action arising from rear-end truck collision, following directed verdict as to negligence, jury assessed plaintiff's damages as "None." Plaintiff was granted new trial on damages only and obtained $9,000 jury verdict. Defendant appealed.
Reversed
1. NEGLIGENCE — Jury Verdict — "None" — Jury Concluded — Not Proximate Cause — Injuries — Not Justify — New Trial — Inadequate Damages. Where, in personal injury action following directed verdict as to negligence, the jury assessed plaintiff's damages as "none," it is obvious that the jury, as trier of fact, concluded that plaintiff had not met his burden of proving that injuries of which he complained were proximately caused by defendant; and thus, the verdict does not constitute an award of inadequate damages such as would justify granting plaintiff a new trial.
2. NEW TRIAL — Granted — Error — Evidence Presented — Questions of Fact — Proximate Cause — Jury Verdict — Damages — "None". Where evidence showed that defendant's light pickup truck had rear-ended heavily loaded beer truck driven by plaintiff causing minimal damage to both vehicles and that plaintiff had thereafter completed his delivery route unloading kegs and cases of beer, and where there was some evidence that plaintiff had experienced a back injury prior to the accident, there were disputed questions of fact, particularly as to proximate cause; and it was error for trial court to have granted plaintiff a new trial following jury verdict assessing his damages as "none."
Appeal from the District Court of the City and County of Denver, Honorable George M. McNamara, Judge. Honorable Saul Pinchick, Judge.
Ashen and Fogel, George T. Ashen, for plaintiff-appellee.
Wood, Ris Hames, F. Michael Ludwig, for defendants-appellants.
This is a personal injury action arising from a rear-end truck collision. Defendant-appellant Charles Pullen was the driver of defendant-appellant Stark Lumber Company's truck which rear-ended a beer truck driven by plaintiff-appellee, Eugene A. Roth. Following the conclusion of all the evidence, the trial court directed a verdict of liability against defendants, which by the court's instruction determined the issue of negligence and left to the jury the two issues of proximate cause and damages. The jury was further instructed that if either or both of these elements had not been established by the evidence, that the verdict must be for the defendants. The jury was furnished with a single verdict form which was returned assessing plaintiff's damages as "None." Plaintiff then moved for a new trial on damages only on the ground that the verdict was inadequate, which motion was granted by the trial court. Upon retrial, the issue of proximate cause having been determined by the court, the jury returned a verdict in favor of plaintiff for $9,000. Defendant appeals from the judgment entered on this verdict on the ground that the court erred in the granting of the new trial. We agree and reverse the judgment.
Disputed factual issues were created by the testimony in the first trial as to whether plaintiff's injuries, if any, were proximately caused by defendant's negligence. The evidence shows that defendant was driving an empty pickup truck, that plaintiff was driving a heavily-loaded beer truck weighing approximately 20,000 pounds, and that there was minimal damage to both vehicles. After the accident, plaintiff completed his delivery route, unloading cases and kegs of beer. There was also some evidence that plaintiff had experienced a back injury prior to this accident. In addition, substantial issues of credibility were raised by discrepancies in plaintiff's testimony.
[1] Although we agree with plaintiff that an award of inadequate damages is a proper ground for the granting of a new trial, we do not agree that the original jury returned a verdict for inadequate damages. The trial court found defendant negligent as a matter of law, and that finding is not challenged. However, negligence which is not the proximate cause of injury is not actionable. Kent Manufacturing Co. v. Zimmerman, 48 Colo. 388, 110 P. 187. Plaintiff had the burden of proving that the injuries of which he complained were proximately caused by his accident involving defendant. It is obvious from this verdict that the jury, as a trier of fact, concluded he had not met such burden.
[2] Although a trial court generally has great discretion in granting of motions for new trials, such orders are subject to reversal where it appears from the record that the trial court has merely substituted its opinion on disputed questions of fact for that of the jury. DeMott v. Smith, 29 Colo. App. 531, 486 P.2d 451. Because there were disputed questions of fact, particularly as to proximate cause, it was error for the trial court to have granted the new trial.
Plaintiff also contends that the evidence at the first trial entitled him to damages as a matter of law. We do not agree. Before the issue of proximate cause can be taken from the jury, the evidence must be undisputed and such that reasonable minds could reach but one conclusion. Randall v. Nasbarg, 28 Colo. App. 147, 470 P.2d 893. As indicated above, plaintiff's evidence did not reach this level of certainty.
Judgment reversed and remanded with directions that the original verdict be reinstated and judgment entered thereon.
JUDGE DWYER and JUDGE PIERCE concur.