Murray v. Newmyer

• Decision Date: 07 July 1919
• Docket Number: 9221.
• Citation: 182 P. 888,66 Colo. 459
• Parties: MURRAY v. NEWMYER et al.
• Court: Colorado Supreme Court

182 P. 888

66 Colo. 459

MURRAY v. NEWMYER et al.

No. 9221.

Supreme Court of Colorado

July 7, 1919

Department 1.

Error to District Court, Rio Grande County; Jesse C. Wiley, Judge.

Suit by James A. Murray against Grant E. Newmyer and Nell Newmyer. Judgment for defendants, and plaintiff brings error. Affirmed.

James P. Veerkamp, of Monte Vista, and Ezra T Elliott, of Del Norte, for plaintiff in error.

Dana Blount & Silverstein, of Denver, for defendants in error.

BURKE J.

In this case the plaintiff in error brought suit against the defendants in error for damages for personal injuries received in the town of Del Norte in September, 1915, at which time plaintiff was knocked down and run over by an automobile jointly owned by defendants. This car was driven by the defendant Nell Newmyer; her husband, the other defendant, Grant E. Newmyer, was not present. A motion for nonsuit as to the defendant Grant E. Newmyer was sustained. The cause was submitted to a jury as to the other defendant and verdict returned for her, and plaintiff brings error.

The only alleged errors requiring consideration are:

(1) The granting of a nonsuit as to Grant E. Newmyer.

(2) The failure of the court to properly instruct the jury on the doctrine of the 'last clear chance.'

(3) The limitation of plaintiff's recovery to damages occasioned by the particular acts of negligence alleged in his complaint.

(4) The burden imposed upon the plaintiff to establish the nature and extent of his injuries.

(5) The sufficiency of the evidence to support the verdict.

1. It is admitted that the rule laid down in Schuler et al. v Henry, 42 Colo. 367, 94 P. 360, 14 L.R.A. (N. S.) 1009, supports the nonsuit in question; but we are urged to overrule that case because the decision was by a closely divided court, and is therefore assumed to be of little weight, and because of the excellent reasoning of the dissenting opinion. The first reason given is no reason.

'A deliberate decision of the highest court of the state, although pronounced by a divided court, must be considered as stare decisis upon the questions involved.' 15 Corpus Juris, p. 938, § 326.

'It is well to clear up a misapprehension in the minds of the bar as to the force of a decision of this court in cases in which the court is divided. A dissenting opinion shows that the case has been thoroughly considered. The opinions of the majority govern. When that question arises in future cases, the dissenting justice is as much bound by the decision of the majority as is the justice who wrote the prevailing opinion.' Matthews v. Clark et al., 105 S.C. 13, 19, 89 S.E. 471.

Admitting the excellence of the dissenting opinion in the Schuler Case, we see no reason to disturb the authority.

2. On the doctrine of the 'last clear chance' the court instructed the jury:

'The fact, if it is a fact, that plaintiff was guilty of contributory negligence by going in front of defendants' car, will not defeat his recovery, if, after he was discovered in a dangerous position, if any, the defendant failed to use ordinary care in stopping her car and preventing the injury to the plaintiff.'

The objection urged to this instruction is that it confines the rule to what defendant knew, instead of extending it to what she might have known 'by the exercise of ordinary care and diligence.' But inasmuch as there is no question here of defendant not discovering plaintiff and knowing of his approach (she admits she did so), no necessity exists for the inclusion of the omitted language.

3. It is settled in this jurisdiction that when plaintiff specifies...