Lyons v. Hoffman, 71--236
| Decision Date | 19 September 1972 |
| Docket Number | No. 71--236,71--236 |
| Parties | Robert LYONS, Jr., Plaintiff-Appellee, v. Jay R. HOFFMAN and LeRoy Hoffman, Defendants-Appellants. . II |
| Court | Colorado Court of Appeals |
Eugene L. Deikman, Denver, for plaintiff-appellee.
Wolvington, Dosh, DeMoulin, Anderson & Campbell, Robert C. Miller, Denver, for defendants-appellants.
This action arose out of an automobile accident in which a vehicle driven by plaintiff, Robert Lyons, was struck from behind by a vehicle driven by defendant Jay Hoffman. The undisputed facts indicate that on a rainy day both cars were traveling north on Interstate 25 through Denver; that traffic on I--25 was at a standstill due to another accident; and that both plaintiff and defendant were proceeding over a crest in the highway which impeded their view of the traffic jam ahead until they were immediately over the crest. Because of their obstructed view, when it became apparent that the traffic was not moving, plaintiff stopped suddenly. Defendant, directly behind plaintiff and traveling at approximately the same speed, was unable to stop his car and collided with plaintiff. Plaintiff sought damages for personal injuries and property damage. The jury returned a verdict in his favor. Defendant appeals.
It has been defendant's contention, throughout these proceedings, that the manner in which plaintiff stopped his car was negligent and contributed to the collision between the two. This issue, however, was not presented to the jury. We agree with defendant that failure to submit this issue to the jury was error, and, therefore, we reverse the trial court.
Plaintiff contends that failure to submit the issue of contributory negligence to the jury was not error, since that issue was not presented in the pleadings. However, in the 'Third Defense' of his answer to plaintiff's complaint, defendant alleged as follows:
'That plaintiff's injuries and damages, if any he has sustained, were proximately caused by plaintiff's own failure to exercise due care for his own safety.'
Prior to trial, the court ruled that this language was inadequate to frame the defense of contributory negligence, and that he would not, at that late date, grant leave to amend the answer. Furthermore, at the end of the trial, when an instruction on contributory negligence was offered by defendant, the court again refused to accept that defense and omitted it from the instructions to the jury.
Pleadings are to be liberally construed, and all doubts are to be resolved in favor of the pleader. Spomer v. City of Grand Junction, 144 Colo. 207, 355 P.2d 960. See also C.R.C.P. 8(f). The theory of pleading is to give an adversary notice of what is to be expected at trial. Here, construing the pleadings in their entirety, we conclude that plaintiff had been put on notice of defendant's contention that plaintiff was negligent. See Hicks v. Cramer, 85 Colo. 409, 277 P. 299.
Plaintiff, however, contends that, although the pleadings make it clear that defendant was alleging negligence by plaintiff, the failure to designate it as contributory negligence changed the nature of...
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Denny Const. v. City and County of Denver
...of a claim"). Moreover, we must construe pleadings liberally and resolve all doubts in favor of the pleader. Lyons v. Hoffman, 31 Colo.App. 306, 308, 502 P.2d 980, 982 (1972); Denver & Rio Grande R.R. Co. v. Wood, 28 Colo.App. 534, 538, 476 P.2d 299, 301 (1970). Here, Denny's cross-claim al......
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Command Communications v. Fritz Cos., No. 00CA1209.
...requirement. Nevertheless, an adversary must receive notice of the claims that will be raised at trial. Lyons v. Hoffman, 31 Colo.App. 306, 502 P.2d 980 (1972). The trial court may not enter judgment based on a theory that was neither presented in pleadings nor pursued at trial. Clemann v. ......
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Adams v. Leidholdt
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Rule 8 GENERAL RULES OF PLEADING.
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