Wold v. City of Boulder, 12705.

• Decision Date: 09 May 1932
• Docket Number: 12705.
• Citation: 91 Colo. 44,9 P.2d 931
• Parties: WOLD v. CITY OF BOULDER.
• Court: Colorado Supreme Court

9 P.2d 931

91 Colo. 44

WOLD v. CITY OF BOULDER.

No. 12705.

Supreme Court of Colorado

May 9, 1932

In Department.

Error to District Court, Boulder County; Claude C. Coffin, Judge.

Action by Ella Wold against the City of Boulder. From judgment for defendant, plaintiff brings error.

Affirmed.

Rinn & Connell, of Boulder, for plaintiff in error.

Frank L. Moorhead, of Boulder, for defendant in error.

BURKE J.

These parties appear here in the same order as in the trial court and are hereinafter designated as there, or as Mrs. Wold and the city, respectively.

Mrs Wold was injured by falling on an icy sidewalk, and sued the city for damages. A jury returned a verdict against her, and to review the judgment thereupon entered, she brings error. Of the nineteen assignments those urged in the briefs and requiring notice may be thus stated: (1) The verdict is against the weight of the evidence; (2) Exhibits C, D, and E were erroneously excluded; (3) certain testimony of the witness Jewett was erroneously admitted; (4) instruction No 10 given by the court was error; (5) the court erroneously gave an additional instruction after the jurors had begun their deliberations.

1. That the evidence is conflicting is undisputed. As usual in such cases it is not difficult to argue that the weight of it is against the verdict. But the jurors themselves are primarily the judges, and usually the best judges, of that matter. Their conclusion is reviewable, and was here reviewed, on motion, by the trial judge. Both have determined the question against plaintiff. Such determination is final unless wrong beyond question. It is not so here. Hallack et al. v. Stockdale et al., 14 Colo. 198, 200, 23 P. 340.

2. Exhibits C, D, and E were photographs, presumably of the place where the accident occurred, offered by plaintiff. They were objected to because there was no evidence as to when they were taken. That they were taken by one of plaintiff's counsel was the only reason suggested for not showing their date. In sustaining the objection, the court pointed out that they indicated an apparent unexplained change in conditions. Aside from such changes they merely showed what was already established by other evidence beyond question or the possibility of mistake. Hence their exclusion could not have been prejudicial. The preliminary proof essential to the admission of photographs rests largely in the discretion of the trial court. Its action will be reversed only in case of clear abuse. There was none such here. In re Estate of Hayes, 55 Colo. 340, 343, 135 P. 449, Ann.Cas. 1914C, 531.

3. One Jewett, a witness for defendant, testified, over objection, that he had never observed ice formed at the place and from the cause alleged. His observations were limited to a period three years prior to the accident. But the complaint charged that the condition 'did exist after every heavy snowfall in Boulder for many years next prior to said time.' Furthermore the answer of Jewett was admitted by the court on the ground that counsel for plaintiff had theretofore elicited contrary statements from their own witnesses, which was true.

4. Instruction No. 10 reads: 'A municipal corporation is not primarily liable for injuries suffered by a pedestrian upon one of its sidewalks because of a defect therein brought about by the action of a third party. Its liability is secondary and arises, if at all, only after it has had a reasonable length of time, after acquiring or being charged with knowledge of the defect, to remedy the same.'

The argument against this instruction is purely negative and no authority in point is cited to fortify it. Moreover, the instruction is taken almost verbatim from the court's en banc opinion (written by Mr. Justice Campbell) in the Willson Case. Denver v. Willson, 81...