Fanstiel v. Wright, 16450
| Decision Date | 02 October 1950 |
| Docket Number | No. 16450,16450 |
| Parties | FANSTIEL v. WRIGHT. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Max M. Glaston, Denver, for plaintiff in error.
M. M. Rinn, Wade P. Connell, Boulder, Lyman P. Weld, Longmont, for defendant in error.
Wright, as plaintiff, obtained judgment below against Fanstiel in an action grounded in negligence and, pursuant to determination by the jury that in committing the tort complained of, defendant was guilty of negligence consisting of a reckless disregard of the rights and safety of others, execution was ordered against the body of defendant for a period of one year.
Review of the judgment is sought on specification of error in the giving and refusing of instructions, and of prejudicial argument to the jury; and review of the order for body execution is sought on the ground that there was no evidence to justify it.
As to the instructions given, the abstract of record fails to disclose the specific grounds and objections interposed in the trial court so that, as we have frequently held, error is waived and we should not give the matter consideration except in case of grave injustice. It is principally urged that under its instructions the court failed properly to submit to the jury issues of contributory negligence and unavoidable accident, but no evidence is called to our attention, and careful reading of the abstract fails to disclose any evidence requiring submission of either of those issues to the jury. Instruction No. 5, which is here challenged, was not a correct statement of the applicable law, but, although plaintiff in error states in his brief that objection was made to this instruction on the ground that it 'was not a true statement of the law,' the record shows no such objection and, even if made, it would not have been sufficient. A careful reading of the requested instructions regused by the court fails to disclose any abuse of discretion in their rejection.
The abstract contains no showing of improper argument. It appears from the record that at the close of the trial, after instructions had been given and argument made, and the jury had retired, counsel for defendant made the following statement: 'Object to the argument of counsel where he stated to the jury in his argument that the defendant owns a farm; and likewise where he stated that he needs the jury to answer The court apparently construed this belated objection as a motion for a mistrial, and denied it as such. Assuming that the objection was in fact timely, we find nothing in the statement, that defendant owned a farm, so prejudicial as to require the granting of a new trial. The second statement, if made, would not be prejudicial as to the verdict, but only as to the application for execution against the body, and, in view of our determination of that question, any discussion as to its prejudicial effect becomes idle here.
The challenge to the sufficiency of the evidence to require submission to the jury of the question of defendant's guilt of reckless or willful disregard of the rights or safety of others, presents a more serious question. The statute '35 C.S.A. c. 93, §§ 73, 74, authorizing imprisonment for civil liability is penal in its nature and requires strict construction. Coryell v. Lawson, 25 Colo.App. 432, 139 P. 25. Negligence, in its generally accepted meaning, is the negative of attention--the failure to give attention to the character or probable consequences of an act or omission. Negligence consisting of a reckless disregard of the rights or safety of others, as required by the statute, involves more than that. To be so...
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...and relied on Sec. 500 of the Restatement. See Coffman v. Godsoe, 142 Colo. 575, 351 P.2d 808, 814-15 (1960); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001, 1002-03 (1950). In Fanstiel the Court referred to a number of different descriptions of reckless To be so classified conduct must n......
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