Wales v. Howard

• Decision Date: 13 November 1967
• Docket Number: No. 21555,21555
• Citation: 433 P.2d 493,164 Colo. 167
• Parties: Harold WALES, Plaintiff in Error, v. David HOWARD, by his next friend, William I. Howard, Defendant in Error.
• Court: Colorado Supreme Court

Page 493

433 P.2d 493

164 Colo. 167

Harold WALES, Plaintiff in Error, v. David HOWARD, by his next friend, William I. Howard,

Defendant in Error.

No. 21555.

Supreme Court of Colorado, In Department.

Nov. 13, 1967.

Gordon, Lefferdink & Legg, Lamar, for plaintiff in error.

Carl M. Shinn, Lamar, for defendant in error.

PRINGLE, Justice.

Plaintiff in error, defendant below, brings this writ of error directed to a judgment of the District Court of Cheyenne County, Colorado, entered on a jury verdict in favor of David Howard, plaintiff below, awarding $8,000 damages for personal injuries. The parties will be referred to as plaintiff and defendant, or by name.

Plaintiff was seven years of age on July 23, 1959, when he sustained the injuries sued upon. He was run over by an automobile owned by defendant and driven by his daughter, who died before this suit came to trial. The parties stipulated that the automobile was a 'family purpose automobile' and that at the time of the accident it was being used for family purposes. Plaintiff testified that he stumbled and fell while crossing the street; that defendant's car was turning the corner at the time he fell and that the left wheels of the car ran over his left leg. He suffered a fractured femur, was put in traction for a month and then in a body spica cast. He was in the hospital four months and was put back a year in school. There was medical testimony that he had made a complete recovery by the time of the trial (June, 1964). The hospital bill was $1,281.80 and the doctor's bill $200.

Defendant contends that the amount of the verdict was excessive and that the trial court erred in (1) failing to instruct the jury that a minor pedestrian has some duty of lookout; (2) giving an instruction containing the stipulation of facts agreed to by the parties, thus placing 'undue emphasis' on this part of the evidence and (3) allowing the doctor's bill rendered to plaintiff's father to be introduced into evidence as part of plaintiff's damages.

I.

The contention that the verdict of $8,000 was excessive is based solely on the giving of Instruction No. 15, which alowed the jury to consider as an element in awarding damages '(s)uch sums as will compensate him for his time which has been lost.' Defendant did not object to the instruction at the trial. He now contends that it allowed the jury to consider possible loss of earnings during minority as an element of damage.

R.C.P.Colo. 51 states that only objections made by counsel at the trial will be considered on writ of error. It is true that R.C.P.Colo. 111(f) gives this Court discretion to notice errors appearing of record, and that this Court has used this discretion to find reversible error in the giving of instructions even though no objection was made thereto at the trial. Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993; Warner v. Barnard, 134 Colo. 337, 304 P.2d 898. Such discretion is exercised, however, only where necessary to prevent manifest injustice. In the Kendall case, supra, the court gave no instruction at all on the measure of damages, and none was tendered by the parties. In Warner, supra, the instruction given without objection was 'laden with the potential for conjecture, misinterpretation and confusion,' and based on assumptions of fact 'manifestly outside the realm of possibility.' 134 Colo. at 339, 304 P.2d at 899.

Both parties were satisfied with the instruction and apparently neither thought at the time of the trial that it would lead the jury to take into account anything not in the record. There was no evidence at the trial dealing with lost earnings. We cannot say that a verdict of $8,000 is so grossly excessive, under the circumstances of this case, that it must have been 'motivated by something other than the evidence in the case.' Moseley v. Lamirato, 149 Colo. 440, 447, 370 P.2d 450, 455. See Clark v. A. Bazzoni & Co., 7 Ill.App.2d 334, 129 N.E.2d 435, upholding a verdict of $12,500 for injuries to a 12-year-old boy similar to those of the plaintiff here.

II.

Defendant next contends that the court erred in failing to instruct the jury that a minor pedestrian has some duty of lookout. In Instruction No. 9, the court stated:

'You are instructed that the drivers of all motor vehicles have the legal duty to maintain a proper lookout and to see what can and should be seen on approaching other highway traffic or pedestrian, so as to prevent and avoid motor vehicle or pedestrian accidents. One is presumed to have seen what he could and should have seen in the performance of this duty. The observation must be accomplished by reasonable thought and judgment, otherwise there would be no reason for the duty.'

Defendant has not contended that this instruction inaccurately states the law as to the driver's duty of lookout, but objected only on the grounds that it did not include a statement as to a pedestrian's duty as well. Looking at the instructions as a whole, we cannot say that there was reversible error in this regard.

Instruction No. 5 covered contributory negligence and Instruction No. 6 informed the jury that a child is required to exercise 'that degree of care which ordinarily is exercised by children of like age, mental capacity...