Opinion
Sept. 28, 1971
Editorial Note:
This case has been marked 'not for publication' by the court.
George T. Ashen, Denver, for plaintiff in error.
Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute.
Mrs. Virgil sued Mr. Wachsmann to recover damages for personal injuries allegedly received when her car was struck from the rear by a car driven by Wachsmann. Trial was had to a jury which returned a verdict in favor of Wachsmann. Virgil obtained a writ of error to the judgment entered thereon. We affirm.
The issues pled and tried were the negligence of Wachsmann and the contributory negligence of Virgil. Virgil asserts three grounds of error: the admission of hearsay, the submission of the issue of contributory negligence to the jury, and the failure to grant a new trial because of asserted misconduct of Wachsmann in allegedly talking to a member of the jury during a recess.
The accident occurred on a snow covered road. Both vehicles were traveling north. Virgil was in the left-hand lane of the two northbound lanes preparing to make a left turn when she was struck from the rear by Wachsmann. The sole factual dispute was whether the rear end of Virgil's car started to skid into the right-hand lane prior to being struck. A state patrolman arrived at the scene shortly after the accident happened, took both participants into his car and took statements from both as to how the accident occurred.
At the trial both parties were presented and testified. Virgil testified that she was in the left-hand lane and that her car did not skid until it was hit. The patrolman was called as a witness for Wachsmann. He was asked, on direct examination, what Wachsmann had said as to how the accident occurred. Objection was made and the question was withdrawn. The witness was then asked what Virgil had said. His answer was that she had stated that her car had started to skid prior to being hit by Wachsmann. The witness was thoroughly cross-examined on this point. On redirect he was asked to clarify the point as to whether Virgil had said she was skidding prior to the impact. The witness indicated that in order to do so he would have to describe all that was said while interrogating both parties. This he was permitted to do, including the statement made by Wachsmann. Objection was made to the admission of Wachsmann's statement on the ground that it was hearsay.
Under the above circumstances it was not error to admit the statement. It was not offered nor admitted to prove the truth of the facts stated, but only to show the circumstances under which Virgil made her statement. As was said in Prudential Insurance Co. v. Sommers, 148 Colo. 212, 365 P.2d 544, 'The hearsay rule, or the rule excluding self serving declarations, is not applicable to a situation where the ex parte statement is offered for some purpose other than proving the truth of the thing asserted.'
The other asserted grounds of error are without merit. There was ample evidence to support the submission of the issue of contributory negligence to the jury. Further, at a hearing on the alleged misconduct of Wachsmann, Virgil wholly failed to establish any such misconduct.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.