Warner v. Barnard
| Decision Date | 03 December 1956 |
| Docket Number | No. 17852,17852 |
| Citation | 134 Colo. 337,304 P.2d 898 |
| Parties | Sue Freeman WARNER, Plaintiff In Error, v. Ivan Lewis BARNARD, Defendant in Error. |
| Court | Colorado Supreme Court |
Margaret R. Bates, Denver, for plaintiff in error.
Lowell White, Walter A. Steele, Denver, for defendant in error.
We will herein refer to the parties as they appeared in the trial court, where plaintiff in error was plaintiff and defendant in error was defendant.
The action was brought by plaintiff Sue Warner to obtain a judgment for personal injuries allegedly caused by defendant Barnared while driving his automobile 'in an intoxicated condition, negligently, carelessly and recklessly, and with a wilful and wanton disregard of the rights' of plaintiff. Plaintiff was a passenger in the automobile owned and operated by defendant at the time of the accident which resulted in her injuries.
Defendant denied the allegations of the complaint and alleged as affirmative defenses: (1) That 'the alleged injuries and damages are the result of an unavoidable accident'; and (2) that plaintiff 'voluntarily assumed the risk of riding with the defendant and that she was entirely conscious of the manner and mode in which defendant was operating his automobile; that if the defendant was operating his automobile as charged, then the plaintiff was guilty of negligence which contributed to the happening of the accident and her resulting injuries.' Trial to a jury resulted in a verdict in favor of defendant. Motion for new trial was denied and judgment entered on the verdict. Plaintiff, seeking review of the judgment, brings the cause to this court by writ of error.
Counsel for plaintiff presents the argument for reversal of the judgment under five captions, the first of which relates to alleged error in permitting cross-examination of the plaintiff with reference to statements made by her while in a hospital; and the second, in excluding from evidence a statement made by defendant in the deposition given by him prior to the trial. With reference to these two points it is sufficient to say that we have fully considered the argument made relating thereto and find it to be without merit.
Without objection from either party the trial court gave Instruction No. 11 to the jury. This instruction was as follows:
The last point urged by counsel is that the trial court erred in the admission of evidence concerning the injuries and damages suffered by defendant's wife as a result of the accident, as well as in the admission of evidence of the loss sustained by defendant in the destruction of this automobile.
Questions to be Determined.
First: Was error committed by the trial court in giving Instruction No. 11 to the jury?
This question is answered in the affirmative. We know of no authority which justifies the giving of an instruction which is so laden with the potential for conjecture, misinterpretation and confusion. The assumptions of fact upon which the instruction is based are manifestly outside the realm of possibility. We are at a loss to understand how it would be possible for an accident to be caused with equal probability by negligence consisting of a willful and wanton disregard for the rights of the plaintiff 'on the one hand,' or by simple negligence, 'on the other hand.' We cannot understand how an accident could possibly be caused with equal probability by the defendant's intoxication 'on the one hand' or by an unavoidable accident 'on the other hand.' It might conceivably be possible for trained lawyers to comprehend what might have been intended for coverage by this instruction, but in the minds of jurors it could be...
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