Brittis v. Freemon
| Decision Date | 10 September 1974 |
| Docket Number | No. 73--311,73--311 |
| Citation | 527 P.2d 1175,34 Colo.App. 348 |
| Parties | Anthony BRITTIS, Plaintiff-Appellant, v. Margaret FREEMON, Defendant-Appellee. . I |
| Court | Colorado Court of Appeals |
Hindry & Meyer, Arnold C. Wegher, Richard S. Hays, Denver, for plaintiff-appellant.
Williams, Erickson & Wallace, R. Neil Quigley, Denver, for defendant-appellee.
This case arose from an automobile accident on August 14, 1965. While stopped at a red traffic signal, plaintiff's automobile was struck from the rear by a vehicle operated by defendant. Plaintiff had a pre-existing arthritic condition which was allegedly aggravated by this accident. At the close of all the evidence, the trial court granted plaintiff's motion for a directed verdict of liability against defendant, and submitted to the jury the issues of whether plaintiff sustained injuries as a proximate result of defendant's negligence and, if so, the amount of damages. The jury returned a verdict for plaintiff, but found no damages. Plaintiff appeals. We reverse.
Effect of Directed Verdict of 'Liability'
The plaintiff first asserts that, as a matter of law, he is entitled to an award of damages where there has been a directed verdict on the issue of 'liability.' We disagree. A directed verdict of 'liability,' or more accurately, 'negligence,' results when a trial court finds, as a matter of law, that defendant has by his acts or omissions breached a duty which he owed to plaintiff. In order to be entitled to damages plaintiff must also show what injuries if any, resulted directly and proximately from defendant's negligence. This issue generally involves questions of fact and is not disposed of by a directed verdict as to liability or negligence. Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145; and Block v. Balajty, 31 Colo.App. 237, 502 P.2d 1117. Thus, where, as here, there is conflicting evidence on the damages issue, the questions of whether defendant's negligence was the proximate cause of plaintiff's injuries, and the amount of plaintiff's damages, must be submitted to the jury for its determination.
Plaintiff argues that the trial court erred in refusing to instruct in accordance with Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, which is the source of Colorado Jury Instructions 6:8 on aggravation of a pre-existing condition. The instruction, as given by the trial court, reads as follows:
'If you find that before the accident plaintiff, Anthony Brittis, had a physical ailment or disability, he is not entitled to recover for any such physical ailment or disability which may have existed prior to the accident, or for any ailments or disabilities from which plaintiff may now be suffering which were not proximately caused by the accident.'
While this instruction would have been clearer if it had been stated in the words of Colorado Jury Instructions 6:8, it essnetially paraphrases the first paragraph of that pattern instruction. However, the court declined to give the second paragraph of Colorado Jury Instructions 6:8, which states:
The court also instructed the jury that plaintiff had to establish his case by a preponderance of the evidence, that no verdict could be based on conjecture, and that:
'If you find from the evidence that the plaintiff sustained no injuries or damages proximately caused by the collision with defendant's vehicle, you are instructed to complete the form of verdict tendered to you by writing the word 'None' in the space immediately following the dollar sign.'
These were the totality of the court's instructions on the issues related to the manner in which the jury should consider plaintiff's pre-existing condition.
The adequacy of these instructions, as they relate to this issue, must be determined by reading them as a whole. Nelson v. Nelson, 27 Colo.App. 104, 146 P. 1079. In these terms, their net effect was to direct that plaintiff could recover only for that portion of his present disability which was proximately caused by defendant's negligence. Absent the complicating factor of a pre-existing condition, such instructions would have been correct.
The court's instruction ordered the jury to enter the word 'none' if they found no damages proximately caused by defendant's negligence and the jury was not given the second half of the Newbury instruction. Hence, we cannot ascertain whether they found no damages at all or whether they were compelled, pursuant to the court's instructions, to conclude that plaintiff must not recover any damages unless he was able to prove which part of his injuries were proximately caused by the accident.
However, the evidence, without dispute, established that plaintiff's suffering was aggravated by the accident, and there was expert medical testimony, adduced upon trial, from which the jury could have found that it was impossible to ascertain the quantum of present pain and suffering attributable to aggravation of the pre-existing arthritic condition. Under such circumstances, the limiting effect of the instructions given violates the principles enunciated by Newbury.
The trial court refused to give the second half of the Newbury instruction because it determined that the total instruction can be given only if plaintiff has proven, by a preponderance of the evidence, impossibility of apportionment. This was error. See Blaine v. Byers, 91 Idaho 665, 429 P.2d 397. To understand why the burden is not on plaintiff to prove impossibility of apportionment, we must analyze the legal principles implicit in the holding of Newbury v. Vogel, Supra. It is axiomatic that the law of negligence is based on a 'fault' philosophy. One of the fundamental principles which underlies negligence philosophy is that a tortfeasor takes his victim a he finds him and is responsible for the results of his negligence to that particular victim. Fischer v. Moore, Colo., 517 P.2d 458. See W. Prosser, Torts § 50; and Restatement (Second) of Torts § 461.
If we accept the proposition that defendant takes his victim as he finds him, it is logical to place the burden on de...
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