Bethel v. Thornbrough, 7079.

• Citation: 311 F.2d 201
• Decision Date: 04 December 1962
• Docket Number: No. 7079.,7079.
• Parties: Avo B. BETHEL and The Aetna Casualty and Surety Company, a Connecticut corporation, Appellants, v. Herbert A. THORNBROUGH, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

311 F.2d 201 (1962)

Avo B. BETHEL and The Aetna Casualty and Surety Company, a Connecticut corporation, Appellants, v. Herbert A. THORNBROUGH, Appellee.

No. 7079.

United States Court of Appeals Tenth Circuit.

December 4, 1962.

Gerald Harrison, Denver, Colo. (Tilly & Skelton and Lansford F. Butler, Denver, Colo., were with him on the brief) for appellants.

William P. Horan, Denver, Colo. (Burnett, Watson & Horan, Denver, Colo., were with him on the brief), for appellee.

Before BRATTON, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

This diversity action was brought in the Court below by appellants (plaintiffs) against appellee (defendant) to recover damages for personal injuries alleged to have been sustained in an automobile accident. A jury trial of the case resulted in a verdict in favor of the defendant.

The only two questions presented for our determination are whether the court below erred in instructing the jury as to a city ordinance requiring the drivers of vehicles to give a signal of their intention to stop and in permitting the personal physician of plaintiff, Avo B. Bethel, to testify at the trial over her objection on the ground of privilege.

The pertinent facts are as follows: On the day in question plaintiff Bethel, with her daughter as a passenger, was driving west on West 38th Avenue in Denver, Colorado. As she approached the intersection with Eliot Street, she met a truck traveling in the opposite direction on West 38th Avenue, which caused slush from the street to be splashed on the windshield of her car and temporarily obstructed her vision of the street ahead. Plaintiff Bethel testified that, prior to the occurrence, she had commenced to slow her car down because of the presence of two children in the vicinity of the intersection and that she did not give a hand signal to indicate to others following her that she intended to stop. Defendant was driving his car in the same direction, at this same time, and was following immediately behind the Bethel vehicle. The windshield of his car was also splashed with slush and by the time the automatic wipers had cleared the slush from the windshield, he was too close to the Bethel car to avoid a rear end collision with it. At the time of the collision, the Bethel car had come to a complete stop at the intersection.

The pre-trial order entered in the case defined the issues as follows: "(a) Whether or not the defendant operated his automobile in a careless and negligent manner in causing the automobile accident. (b) Whether or not the plaintiff Bethel was guilty of contributory negligence in said accident or whether or not said accident was unavoidable. (c) The nature and extent of injury and damage suffered by plaintiff Bethel."

The Court below instructed the jury upon all of these issues as well as upon the applicable city ordinance and the jury returned a verdict in favor of the defendant. However, no special questions were submitted to the jury and it is, therefore, impossible to determine the basis for the jury's verdict. It could have found no negligence on the part of the defendant, negligence on the part of the defendant and contributory negligence on the part of plaintiff Bethel or that the accident was unavoidable.

Clearly, contributory negligence on the part of plaintiff Bethel was one of the important issues in the case. It was pleaded as an affirmative defense and so recognized and determined by the parties and the Court in the pre-trial order. We agree with the plaintiffs, and it is well settled, that instructions to the jury should be confined to the issues raised by the pleadings in the case and the facts developed by the evidence in support of those issues.¹ It is error to instruct the jury upon issues raised by the pleadings and, as in this case, further defined by the pre-trial order, unless there is evidence introduced to support them.²

The trial Court, in its instructions carefully explained the defense of contributory negligence, the proof necessary to sustain the defense and the effect of a finding by the jury in favor of the defendant on that issue. In this same connection, the court quoted the applicable parts of a Denver City Ordinance,³ which is the instruction complained of here, and stated that a violation thereof is negligence per se but that such a violation should not be considered by the jury unless it was the proximate cause of the accident. Plaintiffs urge that there was insufficient evidence in the case to justify the giving of an instruction on the ordinance and the effect of a violation of it and therefore the Court committed reversible error. We do not agree, but, rather agree with the defendant in his argument that...