Hanlon v. Woodhouse, 15234.

• Decision Date: 04 June 1945
• Docket Number: 15234.
• Citation: 160 P.2d 998,113 Colo. 504
• Parties: HANLON v. WOODHOUSE.
• Court: Colorado Supreme Court

160 P.2d 998

113 Colo. 504

HANLON v. WOODHOUSE.

No. 15234.

Supreme Court of Colorado

June 4, 1945

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Suit by Earl Woodhouse against James F. Hanlon for damages arising out of an automobile collision, in which defendant filed a cross-complaint. To review a judgment for plaintiff defendant brings error.

Judgment reversed.

On Petition for Rehearing.

Frank L. Grant and Earle F. Wingren, both of Denver, for plaintiff in error.

Dickerson, Morrissey & Zarlengo and David Rosner all of Denver, for defendant in error.

JACKSON Justice.

Plaintiff Woodhouse recovered judgment for damages arising out of an automobile collision in the amount of $12,654.60 in a suit in which defendant Hanlon had filed a cross-complaint in which he asked for damages in the sum of $24,800. Defendant, as plaintiff in error, seeks reversal of the judgment rendered against him. Reference will be made to the parties as they appeared in the trial court.

The collision occurred at approximately 2:15 a. m. Sunday morning, July 21, 1940, some 385 feet north of the line between Douglas and Arapahoe counties on highway 85 (four-lane at that point) between Denver and Colorado Springs. The weather was clear at the time of the accident. Plaintiff, southbound, was returning alone from Denver, where he had spent the evening with friends at a dance, to his home in Sedalia. Defendant, with his fiance and two men in his car, was returning from a resort on the Jarre Canon road west of Sedalia to Denver at the time of the collision, and defendant was driving. Defendant's fiance and one of the men accompanying him were killed as the result of the collision. Both plaintiff and defendant were severely injured, and each lost six teeth in the accident. Both cars were wrecked. In the glove compartment of each car was a bottle of whiskey--that in plaintiff's car being nearly full, that of defendant containing a little less. The cars collided somewhat west of the center line of the road, plaintiff being on his right side of the highway as he was proceeding southward.

One of the defendant's four specifications of error is gased on the trial court's instruction No. 8 to the jury, given over his objection. That instruction reads as follows: 'The court instructs the jury that if you find from the evidence that the plaintiff, Woodhouse, was in any degree negligent and which negligence contributed to the accident, then he cannot recover; but if you further find from the evidence that the plaintiff Woodhouse was on his right side of the orad, then there is no contributory negligence on the part of the plaintiff Woodhouse.'

Defendant's answer alleged, inter alia, that plaintiff at the time of the accident 'was under the influence of intoxicating liquor, and with a wanton and willful disregard of the rights and safety of others, and particularly of this defendant, negligently and carelessly managed, manipulated and controlled his said automobile, and that by reason of such wanton and willful disregard of the rights and safety of others, and particularly of this defendant, and such carelessness and negligence and without any fault on the part of the defendant, drove his said automobile head-on into the automobile of the defendant with such force and violence that * * *' ect.

Defendant introduced in evidence the depositions of Mr. and Mrs. Derrick, which in substance were to the effect that they were following plaintiff's car the morning of the accident from Littleton on their way to see the sunrise from Pikes Peak; that his car was going over 60 miles an hour, and between Littleton and the place of the accident that it 'was weaving from one side of the road to the other, continuously.' Defendant's explanation for being on the west side of the center line was that plaintiff's car bore down on him on the east side and he crossed to the west side to avoid it.

Instruction No. 5 given by the trial court reads as follows: 'The jury are instructed that if you find from the evidence that the defendant's car was on the left of the center of the highway and that the collision with plaintiff's car was caused by the failure of the defendant to keep to the right of the highway and that if you further find that the driver of plaintiff's car was exercising due care and caution immediately preceding the accident, then your verdict should be for the plaintiff.'

Counsel for defendant argue that in view of the foregoing circumstances instruction No. 8 was erroneous and highly prejudicial to defendant; that it was contradictory to, and could not be cured by other instructions; and that, inasmuch as the evidence was undisputed that defendant was west of the center line at the time of the collision, the effect was to direct the jury to return a verdict for the plaintiff. Counsel for plaintiff argue that instruction No. 8 was proper, and rely upon Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519; Hertz Driv-Ur-Self System, Inc., v. Hendrickson, 109 Colo. 1, 121 P.2d 483.

In neither of the latter cases do we find an instruction going to the extent of the one under discussion, nor do we believe that the principle involved in either supports, or is authority for instruction No. 8 given in the instant case.

On the other hand, we think the effect of instruction No. 8 is, as urged by defendant, to take from the beliberation of the jury the question of any contributory negligence, and consequently it is in conflict with instruction No. 5.

We held, as stated in the syllabus in Fox Colorado Theater Co. v. Zipprodt, 89 Colo. 446, 3 P.2d 798, that, 'Where instructions given by the court are conflicting and the reviewing court is unable to say which of such instructions guided the jury in its deliberations, the verdict cannot be upheld.'

We also have held, as expressed in the syllabus in McRae v. People, 101 Colo. 155, 71 P.2d 1042, that 'Error committed in the giving of an erroneous instruction is not cured by the giving of another instruction on the same proposition which correctly states the law.' See, also, Towles v. Meador, 84 Colo. 547, 272 P. 625. This rule seems to be sound for although, as may be said in this case, there is evidence to support the verdict upon the proper instruction we cannot speculate as to which instruction the jury followed; and if the verdict is based on the improper instruction, then prejudicial error has been committed and the judgment should not be upheld.

The Arkansas Supreme Court commented on a similar situation in Riceland Petroleum Co. v. Moore, 178 Ark. 599, 12 S.W.2d 415, 417, in these words: 'Appellant insists that instruction numbered 3 * * * permits a recovery upon the mere finding that...