Avery v. Wadlington
| Decision Date | 09 September 1974 |
| Docket Number | No. 26351,26351 |
| Citation | 186 Colo. 158,526 P.2d 295 |
| Parties | Sharon AVERY, Plaintiff-Appellant, v. Thomas H. WADLINGTON, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Fischer, Wilmarth & Hasler, G. William Beardslee, Elery Wilmarth, Fort Collins, for plaintiff-appellant.
Johnson, Anderson & Dressel, William F. Dressel, Fort Collins, for defendant-appellee.
Under our new comparative negligence statute, the trial court refused to allow an explanation or any comment to the jury by plaintiff's counsel of the effect of its determination of the percentage of negligence by the defendant and by the plaintiff. In its special verdict, the jury found 30% Negligence by the defendant and 70% Negligence by the plaintiff. The trial court thereupon entered judgment for the defendant in accordance with this statute.
Plaintiff Sharon Avery brought this negligence action for injuries sustained by her when her bicycle collided with the side of defendant Wadlington's automobile. Defendant denied any negligence and also affirmatively alleged contributory negligence to a degree exceeding any negligence by him.
The material portions of our comparative negligence statute (1971 Perm.Supp., C.R.S.1963, 41--2--14) are set forth as follows:
'Negligence cases--comparative negligence as measure of damages. (1) Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.
'(2)(a) In any action to which subsection (1) of this section applies, the court, in a nonjury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:
(b) The amount of the damages which would have been recoverable if there had been no contributory negligence; and
(c) The degree of negligence of each party, expressed as a percentage.
(3) Upon the making of the finding of fact or the return of a special verdict, as is required by subsection (2) of this section, the court shall reduce the amount of the verdict in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made; but if the said proportion is equal to or greater than the negligence of the person against whom recovery is sought, then, in such event, the court will enter a judgment for the defendant.'
Plaintiff Avery on this appeal urges us to hold that explanation to a jury of the effect of its special verdict is not only allowable but necessary for an adequate understanding so that it can return a special verdict which will fully accomplish the result intended by the jury. We agree with the trial court's refusal to allow explanation and therefore affirm its judgment.
Plaintiff Avery argues that the jury should have been informed of the operation of the comparative negligence statute particularly with reference to the fact that (1) the plaintiff would not be entitled to any recovery unless her negligence was found to be less than that of defendant Wadlington and (2) that any damages as set by the jury would be diminished by the percent of negligence attributable to the plaintiff.
In this case, the jury found as a fact that plaintiff Avery was 70% Negligent, and thus, as a matter of law, she was precluded from any recovery of damages. The thrust of the plaintiff's argument is that if the jury had been informed of the legal effect of this finding of fact, it would have made a finding of negligence attributable to the plaintiff at a percentage which would have permitted some damages in favor of the plaintiff. To put it another way, the plaintiff in effect is contending that by giving the jury an explanation of how the court applies the answers in the jury's special verdict, the jury will then be in a position to control whether damages should be awarded, and if so, the amount of those damages.
We reject the plaintiff's contentions that comment and explanation of the manner in which the judge applies the special verdict is proper, and that refusal to allow such comment and explanation is reversible error in this case. We are convinced that the legislature, when it enacted the comparative negligence statute, intended to establish a system in negligence cases which divides the responsibility for a fair and good result between the jury and the judge. Such a system enhances the chance of a pure verdict on material facts alone. It mandates in precise language that the jury is the finder of facts and as such simply answers questions posed to it in the special verdict form. The jury should be, and was in this case, adequately instructed with reference to this fact finding function.
On the other hand, the judge performs the function of law...
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