Schell v. Kullhem
| Citation | 127 Colo. 555,259 P.2d 861 |
| Decision Date | 15 June 1953 |
| Docket Number | No. 16949,16949 |
| Parties | SCHELL v. KULLHEM. |
| Court | Supreme Court of Colorado |
F. Nelson Pabst, Denver, for plaintiff in error.
January & Yegge, Denver, for defendant in error.
The parties are here in the same order as they appeared in the trial court, and we will refer to them as plaintiff and defendant.
Plaintiff, in her complaint, alleges that on the 6th day of January, 1951, at or near the intersection of 33rd Avenue and Downing Street in the city of Denver, defendant so negligently, carelessly and recklessly operated his automobile as to cause it to collide with plaintiff, who was crossing said Downing Street, with the result that she was seriously injured, and it was asked that damages be awarded her on account thereof. The cause was tried before a jury, which returned a verdict favorable to defendant, whereupon the trial court later entered judgment dismissing plaintiff's complaint.
The motion for new trial filed on behalf of plaintiff contains six grounds of alleged error. Rearranging somewhat, and condensing the points upon which reliance is placed in the motion, but covering the same general field, counsel for plaintiff here presents five specifications of points: (1) That the trial court erred in not granting a new trial on grounds of inadequate damages to plaintiff; (2) insufficiency of the evidence to show contributory negligence, or assumption of risk, on the part of plaintiff; (3) that the evidence shows the accident to have been caused solely by the negligence of the defendant; (4) that defendant was negligent as a matter of law; (5) that the jury did not follow the court's instructions relative to damages. Neither at the trial, in the motion for new trial, nor in the specification here, was objection made to the form or substance of any of the instructions given to the jury by the court, nor to the verdict of the jury, nor to its receipt by the court.
It will be noted that points one and five relate to inadequacy of damages, and that the jury failed to follow the court's instructions in this regard. There is no contention that the instructions of the court were in any way objectionable, but simply that the jury failed to follow the instructions relative to the measure of damages. In considering a matter of this kind a jury would have before it two distinct questions, primarily whether plaintiff is entitled to recover, and if so, secondarily, the extent of such recovery. In the instant case the jury determined that the plaintiff was not entitled to recover at all and, under such circumstances, the secondary question of extent of recovery becomes immaterial. The question of inadequacy of damages can become an issue only in event that the verdict of the jury is favorable to the plaintiff, and that, in its consideration of the secondary question, it has overlooked some of the important elements which go to make up a proper and reasonable compensation in its award of damages. Where, as in the instant case, the jury determined the primary issue against p...
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...as to the basic issue of liability, these allegations of error are now moot and deserve no further consideration. Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861. Nine of the allegations of error relate to alleged misconduct on the part of the defendant's counsel in his closing argument to t......
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