Safeway Stores, Inc. v. Langdon

• Citation: 532 P.2d 337,187 Colo. 425
• Decision Date: 18 February 1975
• Docket Number: No. C--534,C--534
• Parties: SAFEWAY STORES, INC., a Maryland Corporation, Petitioner, v. Kitty LANGDON, Respondent.
• Court: Colorado Supreme Court

Page 337

532 P.2d 337

187 Colo. 425

SAFEWAY STORES, INC., a Maryland Corporation, Petitioner, v. Kitty LANGDON, Respondent.

No. C--534.

Supreme Court of Colorado, En Banc.

Feb. 18, 1975.

Wood, Ris & Hames, P.C., Stephen E. Connor, Clayton B. Russell, Denver, for petitioner.

Balaban & Lutz, Harlan G. Balaban, Denver, for respondent.

ERICKSON, Justice.

Kitty Langdon brought suit against Safeway Stores, Inc. for personal injuries which she suffered when a carry-out boy ran into her with a shopping cart. The jury was instructed on the law relating to both negligence and contributory negligence and resolved the issue of liability against the plaintiff. The plaintiff appealed. The Court of Appeals reversed and concluded that the contributory negligence issue should not have been submitted to the jury and that the defendant was negligent as a matter of law. Langdon v. Safeway Stores, Inc., Colo.App., 523 P.2d 997 (s974). As a result, the Colorado Court of Appeals remanded for a new trial on the issue of damages. We granted certiorari. We now reverse and remand for a new trial on both the negligence and damage issues.

I. Challenge for Cause

The court of appeals did not consider the plaintiff's claim that the trial court committed reversible error in denying the plaintiff's challenge of a juror for cause. To obtain six jurors for the trial of a civil action, fourteen jurors are empaneled. C.R.C.P. 47(g). One of the fourteen prospective jurors was Dolores Utard. When she was questioned on voir dire, she stated that she was an employee of the defendant, Safeway Stores, Inc., and that her brother-in-law managed a Safeway Store in the Denver area. On further inquiry, she said that she did not think her employment and relationship with Safeway would affect her judgment, but that she did not know how Safeway would feel about her participation as a juror in the case. Thereafter, the plaintiff challenged her for cause and cited C.R.C.P. 47(e)(3) as authority for the challenge. The trial court denied the challenge. Plaintiff's counsel then exercised a peremptory challenge and excused her as a juror. C.R.C.P. 47 provides in pertinent part:

'(e) Challenges for Cause. Challenges for cause may be taken on one or more of the following grounds:

'(3) Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party, or being a member of the family of any party; or a partner in business with any party or being security on any bond or obligation for any party . . ..'

When a prospective juror falls within the class of persons designated within the rule, actual bias need not be shown. Bias is implied to insure that a jury is impartial, not only in fact, but in appearance. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465 (1909); Francone v. Southern Pac. Co., 145 F.2d 732 (5th Cir. 1944). Compare Fed.R.Civ.P. 47 And 28 U.S.C. § 1870 (1970).

Our rule specifies the grounds upon which a challenge for cause may be asserted. The failure of the trial judge to sustain the plaintiff's challenge for cause, after Dolores Utard was determined to be within the class of persons designated in C.R.C.P. 47(e)(3) was reversible error.

II. The Issues of Negligence and Contributory Negligence

The plaintiff purchased groceries at the defendant's store and was offered the service of a carry-out boy. The groceries were put in a shopping cart, and the carry-out boy followed the plaintiff at a distance of two to three feet as she walked toward the store's exit. When the plaintiff had traveled no more than the distance of one check-out stand, she hesitated slightly to glance at a dog food display which Safeway had constructed. When she hesitated, the carry-out boy ran into her left ankle with the shopping cart and caused serious physical injury.

At the conclusion of the evidence, the plaintiff moved for a directed verdict on the negligence issue. The trial judge denied the motion and submitted the negligence issue to the jury and further instructed the jury, over the plaintiff's objection, on the issue of contributory negligence. The court of appeals concluded that neither negligence nor contributory negligence was an issue for the jury and that the defendant was liable as a matter of law. Accordingly, the court of appeals remanded for a new trial on the damage issue.

Contributory Negligence.

The court of appeals correctly determined that the trial judge committed reversible error by instructing the jury on contributory negligence. Contributory negligence is an affirmative defense which should not be submitted to the jury where there is no evidence to support it. Colorado & Southern Ry. v. Lombardi, 156 Colo. 488, 400 P.2d 428 (1965). As we said in Skorey Co. v. Canino, 142 Colo. 411, 350 P.2d 1069 (1960):

'(C)ontributory negligence has been defined as such acts or conduct on the part of a plaintiff but for which he would not have been injured; or, otherwise stated, negligence on the part of the injured person that so far contributed to the injury that without it the injury would not have occurred. Kent Mfg. Co. v. Zimmerman, 48 Colo. 388, 110 P. 187; Carlson v. Millisack, 82 Colo. 491, 261 P. 657. Negligence involves the violation of a duty or an obligation to another; contributory negligence does not affect a duty, but embraces an undue risk of harm to oneself. The true measure of conduct required of the plaintiff, is what would an ordinarily prudent person have done under the circumstances as they then appeared to exist. Hogue v. C. & S.R. Co., 110 Colo. 552, 136 P.2d 276. The legal rule of conduct requires that the plaintiff, as well as ...