Folck v. Haser

• Decision Date: 02 October 1967
• Docket Number: No. 21842,21842
• Parties: Mabel M. FOLCK, Plaintiff in Error, v. Archie HASER, Defendant in Error.
• Court: Colorado Supreme Court

Page 245

432 P.2d 245

164 Colo. 11

Mabel M. FOLCK, Plaintiff in Error, v. Archie HASER, Defendant in Error.

No. 21842.

Supreme Court of Colorado, In Department.

Oct. 2, 1967.

Rehearing Denied Oct. 23, 1967.

Philip Hornbein, Jr., Roy O. Goldin, Denver, for plaintiff in error.

Wormwood, Wolvington, Renner & Dosh, Denver, for defendant in error.

DAY, Justice.

The parties appear here in the same order as they did in the trial court, and we will refer to them as they there appeared or by name.

Plaintiff Mabel Folck brought suit for damages for injuries resulting from a fall on the threshold of defendant Archie Haser's apartment building. The front entrance of the building has two swinging doors. There is a single step down, outside of the doorway, to the cement sidewalk. At the time of the accident there was a metal mesh mat on the walk below the step. The manager of the apartment, who was also plaintiff's sister, testified that the mesh mat did not always stay in place and had a tendency to buckle and that this condition had been called to the attention of the defendant. There was no direct testimony as to whether the mat was buckled at the time of the accident.

The fall occurred at night. There were two lighting fixtures on each side of the front entrance of the building, but these lights had never been illuminated while the defendant had been the owner of the building. There was a fluorescent light burning in the vestibule insider the entrance. Plaintiff had entered the building through the same doorway without incident to visit her sister. After terminating her visit she made her exit through the doors, which swing outward. She testified that she walked through the doorway to the edge of the single step, closed the swinging doors behind her, and then took the one step down to the sidewalk. When she attempted to take the next step, she felt that her feet were entangled in an object on the sidewalk, which she later discovered to be the metal mat. She lost her balance and fell upon attempting to extricate her shoe from the mat. Plaintiff suffered a back injury which required surgery.

Trial was to a jury and a verdict was returned for the defendant Haser. Plaintiff's motion for new trial was argued and denied and final judgment was entered in favor of the defendant.

On this writ of error plaintiff seeks reversal of the judgment and a new trial on the grounds that several of the instructions to the jury were erroneous, misleading and highly prejudicial. We will comment on each of the instructions in the order in which they were presented in the brief and on oral argument.

I.

One of the instructions plaintiff asserts was erroneous was No. 16, which reads as follows:

'If you find from a preponderance of the evidence that the accident in question was proximately caused by the sole negligence of the defendant and that the plaintiff was not guilty of any contributory negligence then your verdict will be for the plaintiff and against the defendant.

'If you find from a preponderance of the evidence that the accident in question was proximately caused by the sole negligence of the plaintiff, or that the accident in question was proximately caused by the combined negligence of the plaintiff and of the defendant, then your verdict will be in favor of the defendant and against the plaintiff.'

Plaintiff objected to the first paragraph of the instruction and asserts here that it was erroneous on the ground that it placed upon plaintiff the burden of proving her own freedom from contributory negligence contrary to the majority rule not only in Colorado but in an overwhelming majority of other jurisdictions. See Stevens v. Strauss, 147 Colo. 547, 364 P.2d 382.

We agree that the plaintiff does not have the burden of proving that she was not contributorially negligent. The jury was so told in instruction No. 3, to wit:

'The burden of proof was upon the defendant to establish his allegation of contributory negligence on the part of the plaintiff by a preponderance of the evidence.'

Does instruction No. 16 contradict instruction No. 3, and is it inconsistent with the rule of law as to the burden of proof? We answer the question in the negative. Instruction No. 16 refers only to a verdict to be returned for either party in the event that the jury makes certain determinations or findings. The jury is told that if it finds the defendant was negligent and that the plaintiff was not, its verdict should be for the plaintiff. Obviously the jury must be told that before a plaintiff can recover, It--the jury--must determine that she was free from or not guilty of 'contributory negligence.' The instruction refers to what the jury must find--not what the plaintiff must prove. This is no different than in criminal cases in which the jury is told in certain instructions that if certain findings are made by it, it must find the defendant not guilty. We know of no other way to explain to the jury concerning the prerequisites of a verdict for the plaintiff except to instruct that it must, even if defendant is negligent, determine that plaintiff 'was free from negligence' or was 'not negligent' or that there was 'an absence of negligence' on her part, as shown by the proof offered by defendant per the instruction concerning defendant's burden. It was not incumbent upon the court to re-define in instruction No. 16 the 'burden of proof' because the jury also was instructed that it should consider all of the instructions given together as a whole.

Plaintiff argues also that the first paragraph of instruction No. 16 is erroneous because after the words 'contributory negligence' the court failed to insert the words 'which was the proximate cause of plaintiff's injuries.' We hold that the failure to repeat in instruction No. 16 that plaintiff's contributory negligence must be the proximate cause of her injuries does not make the...