Bragdon v. Hexter

• Decision Date: 12 November 1929
• Docket Number: 12182.
• Citation: 282 P. 568,86 Colo. 435
• Parties: BRAGON v. HEXTER.
• Court: Colorado Supreme Court

282 P. 568

86 Colo. 435

BRAGON v. HEXTER.

No. 12182.

Supreme Court of Colorado, En Banc.

November 12, 1929

Rehearing Denied Dec. 9, 1929.

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by Lena Hexter against Samuel Bragdon. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Chinn & Strickler, of Colorado Springs, for plaintiff in error.

T. C Turner and Cunningham & Foard, all of Colorado Springs, for defendant in error.

CAMPBELL J.

Personal injury action by Mrs. Lena Hexter against Samuel Bragdon to recover damages for the injury she sustained as the result of defendant Bragdon's driving his car against her while he was driving north on Nevada avenue, and she was walking east in Cache la Poudre street, in the city of Colorado Springs the street intersecting at a right angle. The verdict of the jury for the plaintiff was approved by the district court and its judgment thereon for plaintiff is here for review. There are three general assignments of error thus grouped by the defendant: (1) The evidence is insufficient to establish the defendant's negligence, but it affirmatively shows that the plaintiff's own negligence was the proximate cause of her injury, and therefore the trial court erred in denying defendant's motion for a nonsuit. (2) The trial court erred in introducing into the case for the first time by its instructions the last clear chance doctrine, in that (a) the same was not pleaded by the plaintiff; (b) there was no evidence in its support; (c) that, if there was any evidence tending to show negligence by the defendant, the same evidence disclosed concurring and continuing negligence by the plaintiff in circumstances that rendered inapplicable the doctrine of last clear chance. (3) Excessive damages indicating prejudice and passion of the jury.

Our examination of the record, in the light of what we deem the applicable principles of law, convinces us that the judgment against the defendant cannot stand. In its instructions to the jury, the trial court for the first time introduced the inapplicable last clear chance rule to the manifest prejudice of the defendant. Such conclusion makes it not only unnecessary but improper now to consider or pass upon the other two assignments: One, as to the insufficiency of the evidence to sustain the verdict; the other, the prejudicial finding of the jury in returning a verdict highly excessive in amount. Particularly do we refrain from discussing these two assignments because, in the event of a second trial, the evidence, in its probative effect, might be materially different from that produced at the first trial. Moreover, we suggest that, in the event of a second trial and if the present pleadings are not changed, the plaintiff should not be allowed to disregard or abandon the allegations of her complaint, as therein she seeks to do upon this review, and which the trial court adhered to in its instructions, that she was struck by the defendant's automobile while she was walking east across the north channel of travel of Nevada avenue, and we make this reference because in their brief here plaintiff's counsel contend that she was not struck by the defendant's car until after she had reached the east line of this driveway and after she began to walk north on the sidewalk across Cache la Poudre street. Generally speaking, a plaintiff must recover, if at all, on the case as made by his pleadings, and, even if he should by his evidence establish a case upon some other theory and upon a different state of facts, he fails in proving the case he makes by the complaint; and, unless the evidence sustains the complaint, no recovery can be had even though there might be a recovery on a different theory had it been set out in the complaint. The plaintiff for the first time in this court seeks to have the case determined upon physical conditions different from those which she relied upon at the trial below. She may not now thus change to conditions, or issues, more favorable to her unless she is given permission to amend her complaint.

We come now to the controlling question in the case. The complaint alleges that the defendant, Bragdon, negligently drove his car against her. In his answer the defendant denies such allegation of negligence. In a second and affirmative defense the defendant alleges that plaintiff was guilty of carelessness and negligence that directly contributed to her injury. In her replication the plaintiff merely denies the new matter in the answer; that is, denies that she was negligent. Such were the issues made by the pleadings on which the evidence was taken and verdict returned and judgment entered in her favor. Nowhere in the complaint or in the replication, which the plaintiff filed, is there any allegation or indication that she intended to rely at the trial on the last clear chance doctrine or rule. We do not say that it was necessary for the plaintiff in her complaint to anticipate...