Jackson v. Mountain Utilities Corp., 17056

• Decision Date: 23 November 1953
• Docket Number: No. 17056,17056
• Citation: 128 Colo. 477,263 P.2d 812
• Parties: JACKSON v. MOUNTAIN UTILITIES CORP.
• Court: Colorado Supreme Court

Page 812

263 P.2d 812

128 Colo. 477

JACKSON v. MOUNTAIN UTILITIES CORP.

No. 17056.

Supreme Court of Colorado, En Banc.

Nov. 23, 1953.

Rehearing Denied Dec. 14, 1953.

Barnard & Barnard, Granby, for plaintiff in error.

January & Yegge, Margaret R. Bates, Denver, for defendant in error.

HOLLAND, Justice.

Plaintiff in error, as plaintiff, on the 14th day of December, 1951, filed a complaint in damages against the Mountain Utilities Corporation in the district court of Grand county. He alleged that on the 15th day of July, 1951, defendant had negligently maintained a rotted power-line pole which was part of a power line running along a road adjacent to plaintiff's home and fishing resort; that the pole became loosened and fell, carrying with it the power transmission lines in such a manner that they extended across the road at a distance of about one foot from the ground near the roadway entrance to plaintiff's property; that when plaintiff passed in the vicinity of said power transmission wires, electricity was communicated to his body with the result and to his damage in the sum of $21,465.

An answer was filed, being a general denial and containing affirmative defenses to the effect that the damages claimed by plaintiff were occasioned by plaintiff's assumption of risk; that they were caused by plaintiff's own negligence and his contributory negligence; and finally, that the incident was an unavoidable accident for which no one was to blame.

The case consumed approximately four days in the trial to a jury. At the close of all the evidence, defendant moved for a directed verdict which was considered and denied with leave to renew after a verdict. The jury retired, deliberated all evening, and about midnight returned a verdict for plaintiff in the sum of $7,500, at which time counsel for defendant stated to counsel for plaintiff, in the presence of the trial court, that he would like to have twenty days in which to file his motions, which request was consented to, and the trial court entered an order without objection, giving defendant twenty days to file such motions and take such action as it may elect. Within the twenty days allowed, defendant filed a renewal of motion for directed verdict, or motion for judgment notwithstanding the verdict, also a motion to correct the verdict, and a motion for new trial or order dispensing with same. At the time of the hearing on these motions, plaintiff's counsel filed motions to strike defendant's motions on the ground that under Rule 6(b) of the rules of civil procedure such motions are required to be filed within ten days after verdict, and that the court was specifically precluded from extending the time beyond the ten-day limitation.

On June 28, 1952, the court granted the motion for judgment filed by defendant and entered judgment of dismissal against plaintiff in favor of defendant. In other words, the trial court set aside the jury's verdict, sustained defendant's motion for directed verdict and dismissed the complaint. The action of the trial court in extending the time for filing of defendant's motion and the ruling of the court thereon in setting aside the jury's verdict and directing a verdict in defendant's favor is now specified as error by counsel for plaintiff.

We find 98 mimeographed pages of brief and reply brief on questions that should not have required half that much unnecessary reading. First of all we find plaintiff consumed twenty-two pages in discussion of a point that should never have been here at all; and in good grace, counsel was in no position to raise the question. We refer to the objection to the extension of time in good faith ordered by the trial court for the filing of motions after the verdict. Plaintiff does not deny, and tacitly admits, consenting to such order, but claims it was done in ignorance of the rule. At the time of the order allowing counsel for defendant twenty days in which to file motions, defendant's counsel asked no more of a favor, and likely less, than plaintiff's counsel later asked this court, namely, for leave to file its opening brief after the expiration of time allowed under the rules. The goose and the gander should eat sauce from the same platter.

The rule which necessitates this needless discussion is rule 6(b), as amended, effective August 18, 1951, which is as follows:

'When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking...