Roth v. Stark Lumber Co., 71--332
| Decision Date | 27 June 1972 |
| Docket Number | No. 71--332,71--332 |
| Parties | Eugene A. ROTH, Plaintiff-Appellee, v. STARK LUMBER CO., a Colorado corporation and Charles Pullen, Defendants-Appellants. . II |
| Court | Colorado Court of Appeals |
Ashen & Fogel, George T. Ashen, Denver, for plaintiff-appellee.
Wood, Ris & Hames, F. Michael Ludwig, Denver, for defendants-appellants.
This is a personal injury action arising from a rear-end truck collision. Defendant-appellant Charles Pullen was the driver of defendant-appellant Stark Lumber Company's truck which rear-ended a beer truck driven by plaintiff-appellee, Eugene A. Roth. Following the conclusion of all the evidence, the trial court directed a verdict of liability against defendants, which by the court's instruction determined the issue of negligence and left to the jury the two issues of proximate cause and damages. The jury was further instructed that if either or both of these elements had not been established by the evidence, that the verdict must be for the defendants. The jury was furnished with a single verdict form which was returned assessing plaintiff's damages as 'None.' Plaintiff then moved for a new trial on damages only on the ground that the verdict was inadequate, which motion was granted by the trial court. Upon retrial, the issue of proximate cause having been determined by the court, the jury returned a verdict in favor of plaintiff for $9,000. Defendant appeals from the judgment entered on this verdict on the ground that the court erred in the granting of the new trial. We agree and reverse the judgment.
Disputed factual issues were created by the testimony in the first trial as to whether plaintiff's injuries, if any, were proximately caused by defendant's negligence. The evidence shows that defendant was driving an empty pickup truck, that plaintiff was driving a heavily-loaded beer truck weighing approximately 20,000 pounds, and that there was minimal damage to both vehicles. After the accident, plaintiff completed his delivery route, unloading cases and kegs of beer. There was also some evidence that plaintiff had experienced a back injury prior to this accident. In addition, substantial issues of credibility were raised by discrepancies in plaintiff's testimony.
Although we agree with plaintiff that an award of inadequate damages is a proper ground for the granting of a new trial, we do not agree that the original jury returned a verdict for inadequate damages. The trial...
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Brittis v. Freemon
...generally involves questions of fact and is not disposed of by a directed verdict as to liability or negligence. Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145; and Block v. Balajty, 31 Colo.App. 237, 502 P.2d 1117. Thus, where, as here, there is conflicting evidence on the damage......
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Guerrero v. Bailey
...of the trier of facts, not an appellate court. Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968); see Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145 (1972). The Guerreros also claim that inclusion of Colorado Jury Instruction 6:9 prejudiced the jurors into giving a smaller da......