Gibbons v. Choury
| Decision Date | 09 June 1969 |
| Docket Number | No. 22396,22396 |
| Parties | John J. GIBBONS, Plaintiff in Error, v. Mary CHOURY, Defendant in Error. |
| Court | Colorado Supreme Court |
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Denver, for plaintiff in error.
Levi Martinez, Pueblo, Charles S. Vigil, Denver, for defendant in error.
This is a personal injury case arising out of an automobile collision wherein one Mary Choury and John Gibbons were the drivers of the two vehicles involved in the accident. The accident occurred in the intersection of 48th Avenue and Federal Boulevard in Denver. Choury was proceeding in a northerly direction on Federal Boulevard approaching 48th Avenue when Gibbons, who had been proceeding in a southerly direction on Federal Boulevard, made a left-hand turn at 48th Avenue where the two cars collided. As a result of this incident Choury made claim against Gibbons, who denied liability and asserted a counterclaim. Trial by jury culminated in a verdict in favor of Choury and against Gibbons in the sum of $12,000, and by this writ of error Gibbons now seeks reversal of the judgment thereafter entered on the verdict of the jury.
The principal issue posed by this writ of error concerns the size of the verdict. Gibbons contends that the $12,000 verdict is excessive and so 'obviously disproportionate' to the injuries sustained as to indicate that the jury was influenced 'by partiality or prejudice or was misled by some mistaken view of the merits of the case.' As a corollary, it is also contended that certain instructions relating to damages, though correct statements of the law, should nevertheless not have been given the jury because they were not warranted by the facts. More specifically, it is said that there was simply no evidence as to any lost earnings prior to trial, and similarly that there was no evidence as to any impairment of future earning capacity. Our study of the record, however, leads us to conclude that though the size of the jury's verdict may perhaps seem to some to be a bit generous, yet we are of the view that the alleged largess is not of such proportion as would justify us in setting it aside. If we are to set aside every verdict that may seem to us to be a bit high, then by the same token we should also set aside those verdicts that may from time-to-time strike us as being niggardly. And then the courts, and not juries, would for all practical purposes be in effect fixing the dollar amount in all personal injury cases. On the contrary, Colorado has long been committed to the rule that a verdict of a jury in a personal injury case is not to be set aside unless the damages awarded are grossly and manifestly excessive or, on the other hand, are grossly and manifestly inadequate. See Odell v. Public Service Co., 158 Colo. 404, 407 P.2d 330; Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450; and Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382. Let us now briefly examine Choury's evidence bearing on the general issue of damages.
Choury's so-called out of pocket expense for doctors, drugs, and the like was $150. According to the pre-trial order, Choury 'reserved' the right to offer as an exhibit an estimate for the cost of repairs to her damaged vehicle in the amount of $406.52. , However, our review of the record fails to reveal that Choury upon trial ever offered any evidence pertaining to the cost of repairing her damaged automobile.
As concerns the nature and extent of her physical injuries, Choury testified that as a result of being thrown around her car when it collided with the Gibbons vehicle, she sustained injury to her left hand, her neck and low back. She testified at some length concerning the pain and suffering experienced by her immediately after the accident, which pain and suffering according to her was considerable and persisted as of the very moment she testified.
An expert witness testified that in his opinion as a result of the accident Choury did sustain an injury to her neck, which he diagnosed as being a 'chronic sprain, cervical spine.' This doctor elaborated a bit by stating that by using the word 'chronic' he intended to mean 'that it is going on for a long time.'
Another doctor testified concerning the injury sustained by Choury in the accident to her 'low back.' It should be noted that Choury candidly admitted that she first sustained an injury to her low back some two months before the accident here in question, and it was her position that she aggravated her injury to the low back in the automobile accident. The examining physician testified that in his opinion Choury had in fact aggravated the disability in her low back in the automobile accident. He then went on to state that as concerns the low back condition, Choury had a disability amounting to '2% As a working unit,' of which 'not more than 1%' was attributable to the automobile collision.
As above noted, Choury herself testified concerning the nature and extent of her pain and suffering, which she said...
To continue reading
Request your trial
-
Burns v. McGraw-Hill Broadcasting Co., Inc.
...awarded are grossly and manifestly excessive, or, on the other hand, are grossly and manifestly inadequate." Gibbons v. Choury, 169 Colo. 267, 269, 455 P.2d 649, 650 (1969); Odell v. Public Service Co., 158 Colo. 404, 407 P.2d 330 (1965); C.R.C.P. 59(a)(5). Likewise, in a defamation case, w......
-
IN RE AIR CRASH DISASTER AT STAPLETON INTERN.
...out by then Chief Justice McWilliams, of the Colorado Supreme Court, now of the Tenth Circuit Court of Appeals, in Gibbons v. Choury, 169 Colo. 267, 455 P.2d 649, 650 (1969): "If we were to set aside every verdict that may seem to us a bit high, then by the same token we should also set asi......
-
Kitto v. Gilbert
...diminished earning capacity. To state this assertion is to refute it. Lost earnings differ from impaired capacity. See Gibbons v. Choury,169 Colo. 267, 455 P.2d 649 (1969). Arthur Kitto suffered a permanent physical disability. A jury could therefore properly award damages for diminished ea......
-
Colwell v. Oatman
...Under all the circumstances presented in this case, the $75,000 judgment was not grossly and manifestly excessive. Gibbons v. Choury, 169 Colo. 267, 455 P.2d 649; Chartier v. Winslow Crane Service Co., Labor Pool finally contends that the trial court erred in certain of its instructions. We......