Liber v. Flor
| Decision Date | 25 April 1966 |
| Docket Number | No. 20792,20792 |
| Citation | 160 Colo. 7,415 P.2d 332 |
| Parties | , 35 A.L.R.3d 1165 Stanley LIBER, Plaintiff in Error, v. Leo FLOR, Glen H. Porter and Mario Zadra, Individually and as County Commissioners of Ouray County, Defendants in Error. |
| Court | Colorado Supreme Court |
Melvin M. Belli, Los Angeles, Cal., Robert E. McLean, Marjorie Worland McLean, Denver, for plaintiff in error.
J. Fred Schneider, Ronald Lee Cooke, Zarlengo, Zarlengo & Seavy, Denver, for defendant in error.
The parties will be referred to as they appeared in the trial court where plaintiff in error was plaintiff and defendants in error were defendants.
This case is before the court on writ of error for the second time. In the original action plaintiff sought actual damages of $250,000.00 and $25,000.00 exemplary damages for severe and permanent injuries suffered when he was struck by pieces of a building destroyed by an explosion while he was a pedestrian on a public highway. He sued both the County of Ouray along with the named defendants; the latter both individually and as County Commissioners. The trial court in the first trial dismissed the action as to all the defendants on the ground of sovereign immunity. Upon review of that dismissal, we sustained the judgment as to the County of Ouray but reversed as to those individually named as defendants and remanded the case for trial. Liber v. Flor, 143 Colo. 205, 353 P.2d 590 (1960).
Upon re-trial in the district court the jury returned a verdict in favor of all defendants and judgment was entered thereon. Plaintiff on writ of error alleges several grounds for reversal which can be summarized as follows:
(1) The court erred in not granting plaintiff's motion for a change of venue;
(2) The court erred in not directing a verdict in favor of plaintiff on the question of liability;
(3) (a) The court improperly instructed the jury, and, the instructions given were confusing, contradictory and unintelligible;
(b) The court erred in refusing to instruct the jury relative to ultrahazardous activities and nuisance in the storage of dynamite (c) The court erred in instructing the jury that the defendants had no insurance;
(d) The court erred in instructing the jury on the degree of care owed plaintiff;
(4) The court erred in refusing to admit into evidence the deposition of the Colorado State Oil Inspector who had conducted an investigation of the explosion at the request of the defendants;
(5) The court erred in refusing to permit certain eyewitnesses to testify certain eyewitnesses to testify concerning certain spontaneous remarks made at the fire just prior to the time of the explosion.
The injury to plaintiff occurred on January 6, 1957. At that time and for at least four years prior thereto, the three defendants were county commissioners of Ouray County. The County owned a building in or close to Ridgway, which will hereinafter be referred to as the county garage, near which plaintiff's injury occurred.
On the fateful day in question the county garage caught fire and after burning for one-half hour to an hour an explosion occurred therein destroying the structure with tremendous force killing three persons and injuring nineteen others. At the time of the fire and explosion there was uncontradicted testimony to the effect that at least 35 to 40 pounds of dynamite were located in the building. When the explosion occurred, plaintiff was walking on the highway which was located at a distance of some 50 to 70 feet from the county garage. After the explosion, plaintiff was found lying along the side of the highway. One of his legs had been severed and the other leg suffered severe permanent injury. The parties stipulated that plaintiff's injuries were the proximate result of the explosion. It is what caused the explosion and who was responsible therefor that is the core of this dispute.
As to the first ground assigned, the plaintiff, on September 1, 1961, filed a motion for a change of venue, in which it was requested that venue be changed from Ouray to Mesa County. Upon a hearing, the trial court ordered a change of venue to Montrose County and not to Mesa County as requested. A second motion for change of venue, which was filed the morning of the trial, requested that venue be changed to the City and County of Denver. This request was denied by the trial court.
Plaintiff, in essence, alleged the same grounds for change of venue in both his motions, viz.:
(1) That the convenience of witnesses and the ends of justice would be promoted by the change; and,
(2) That plaintiff feared he would not receive a fair trial in Ouray or any other county adjacent thereto, because the defendants had an undue influence over the minds of the inhabitants therein.
The plaintiff asserts that when the trial court granted his first motion for change of venue it committed a gross abuse of discretion in only changing the venue to the neighboring county of Montrose instead of, as requested, to Mesa County which is considerably further away. We agree. The granting of a motion for change of venue based on the grounds relied on by plaintiff is discretionary with the trial court. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953); Reyher v. Mayne, 90 Colo. 586, 10 P.2d 1109 (1932). In the absence of a clear showing of abuse of discretion by the trial court we will not interfere. Here, however, a showing was made that the plaintiff was entitled to a change of venue from Ouray County and since the same grounds existed for not trying the case in Montrose County, the court initially should have granted a change of venue to some other county than Montrose. Thus, it is not the second motion that is involved here and no violation of R.C.P.Colo. 98(k) exists.
Plaintiff's second contention is that the trial court erred in not directing a verdict for plaintiff on the question of liability. The rule is that a trial court may only direct a verdict where there is no substantial conflict in the evidence and where the evidence introduced is susceptible to only one interpretation by reasonable men. Nelson v. Centennial Cas. Co., 130 Colo. 66, 273 P.2d 121 (1954); Webster v. Rhodes, 49 Colo. 203, 112 P. 324 (1910). In order to determine the validity of this alleged error, it is necessary first to review the evidence to see if a conflict exists as to the cause of the explosion and then to determine whether the storage of the dynamite, if it caused the explosion, was negligence per se under these facts.
Plaintiff maintains that the only competent evidence is that the explosion was caused by dynamite; while defendants, on the other hand, urge there is a conflict based upon the testimony of their expert witness, Raymond A. Summers, who testified as an expert on dynamite.
Let us review the record in this regard. Plaintiff called several witnesses who testified to the fact that dynamite was usually kept in the garage, and that they had seen some there shortly before the accident; also, that the explosion was caused by dynamite. Even defendants' own witness, Don Caddy, the county road supervisor and the last person in the building the night before the explosion, stated on direct examination:
'Q Now then, the day immediately preceeding (sic) the explosion was there any dynamite stored in this building?
'A Yes, there was.
'Q Approximately how much?
'A Approximately, I believe I stated thirty-five to forty pounds.'
As to what caused the explosion, the following is representative testimony introduced on behalf of plaintiff. For example, the Chief of Police at Ridgway was Carl Orbis. He testified that he had handled dynamite since 1932 and that he saw the explosion. The pertinent question and his answer in this regard were:
'Q Would you describe the type of sound you heard and, if you know, what type of a blast you would say it was?
The Mayor of Ridgway, Max Hockley, testified he had worked at the Climax Molybdenum mine for two years and was at that time around the odor of exploded dynamite constantly. His replies to applicable questions were as follows:
'Q Does dynamite have a distinct odor?
'A It does.
'Q Did you on January the 6th 1957 smell dynamite?
'A I did.
'Q Where was that?
'A At this fire.
'Q Was that after the explosion occurred?
'A Yes.
'Q And you are definite it was a dynamite smell?
'A Yes, sir.
Stephen Duncan, who was seventy-two years of age, saw the explosion. He said that he had handled dynamite since the age of 23 and that he was familiar with its odor. His pertinent testimony was:
.
'Q Did you smell anything at that time?
'A When I was there, no.
'Q Did you smell anything after the explosion?
'A Absolutely.
'Q What was it that you smelled?
'A Well, it was equivalent to dynamite or TNT, I would say.
'Q At that time you smelled dynamite after the explosion?
'A After it, yes, sir.'
Ordie Weston, a Justice of the Peace, testified:
'Q Have you ever seen any other dynamite blasts or have you ever seen a dynamite blast?
'A Yes, I have handled quite a lot of dynamite myself.
'Q Have you seen dynamite explosions many times?
'A Yes.
'Q You saw this particular blast as it occurred?
'A Yes.
'Q Would you describe it as a dynamite blast?
'A I would.
In opposition to this testimony defendants offered the testimony of their expert, Mr. Summers, who was qualified in the field of dynamite only. Summers stated that in his opinion, based on the hypothetical question asked, the explosion had centered around and was caused by an air compressor. We note that this compressor was only 36 to 40 inches long and 18 inches in diameter, whereas the building which was blown...
To continue reading
Request your trial
-
Trimble v. City and County of Denver
...officials could be liable for negligently selecting or supervising subordinates, or directing or authorizing the wrong. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966). Later cases have reaffirmed the principle that public employees are personally liable for torts committed within the scope......
-
Pedrick v. Peoria & E. R. Co.
...A substantial number of States apply this test with the additional requirement that there can be no conflict in the evidence. Colorado-Liber v. Flor, 415 P.2d 332; see also Husser v. School District No. 11 in County of El Paso, 413 [37 Ill.2d 507] P.2d 906; Schaffner v. Smith, 407 P.2d 23. ......
-
Haralampopoulos v. Kelly
...Kelly about when he first contacted his malpractice carrier because the carrier required such notice. See, e.g., Liber v. Flor,160 Colo. 7, 20, 415 P.2d 332, 339 (1966)(“In Colorado, during the actual trial of a case, it is improper to mention insurance in either a positive or negative mann......
-
Paine, Webber, Jackson & Curtis, Inc. v. Adams, 84SC58
...in the evidence and the evidence introduced is susceptible of only one interpretation by reasonable persons. Liber v. Flor, 160 Colo. 7, 13, 415 P.2d 332, 336 (1966); see Little Thompson Water Association v. Strawn, 171 Colo. 295, 300, 466 P.2d 915, 917 (1970). The trial court should take a......
-
RULE 98
...allows only one change of venue on a particular ground, where further change of venue was ordered based on error of court. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966). What is considered "apt time" must be determined by the circumstances of each particular case in which the question ari......
-
COLORADO RULES OF CIVIL PROCEDURE
...allows only one change of venue on a particular ground, where further change of venue was ordered based on error of court. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966). What is considered "apt time" must be determined by the circumstances of each particular case in which the question ari......
-
ARTICLE 25 EVIDENCE GENERAL PROVISIONS
...concerns the authentication of official state documents and not the competency or relevance of the documents themselves. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966); Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967). The word "fact" refers to facts within the knowledge of the reporting ......
-
Rule 98 PLACE OF TRIAL.
...allows only one change of venue on a particular ground, where further change of venue was ordered based on error of court. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966). What is considered "apt time" must be determined by the circumstances of each particular case in which the question ari......