Opinion
Sept. 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 637
R. George Silvola, Colorado Springs, for plaintiffs in error.
Rector, Kane & Donley, Jerry Alan Donley, Colorado Springs, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is a personal injury case initiated by Rose and Louis Bressler, the owners and operators of a restaurant. In their complaint they alleged that the defendant corporation was negligent in leaving a boiler section in a dangerous position in their place of business and that as a result, the boiler section fell, severely injuring Rose Bressler. Trial was to a jury which returned a verdict for the defendant. Plaintiffs now appeal, claiming that the evidence was insufficient to support the jury's verdict and that the trial court erred in its instructions to the jury.
Concisely summarized, the evidence presented showed that employees of the defendant corporation had been working on a hot water heater in the plaintiffs' place of business on July 26, 1963. While on the premises, Louis Bressler asked two of defendant's employees to carry a boiler section into the basement for him. Although Bressler had purchased the boiler section on his own, it was contemplated that the defendant corporation was to install it. However, prior to installation, four days after it was left in the basement, it fell on Rose Bressler's foot causing the injury. Conflicting evidence as to where defendant's employees left the boiler section was presented in the trial court. However, the plaintiff did not present any evidence as to the immediate cause of the fall of the boiler section. There was ample evidence that both plaintiffs were aware of the place and position of the boiler section if it were, in fact, negligently stowed.
I
The plaintiffs charge that the jury's verdict for the defendant was based on evidence that was 'incredible, inherently impossible and unbelievable, inherently improbable probable and irreconcilable with, and contrary to, physical facts and common observations and experience and that it is so opposed to all reasonable probability as to be manifestly false.' We are urged to reverse the verdict of the jury.
We have closely examined the record and find that the above argument is entirely unfounded and without merit. Furthermore, the cases cited to support the argument, while correct in themselves, are totally inapplicable to this case.
We hold that there was adequate and competent evidence presented in this case to sustain the verdict of the jury.
II
The plaintiffs claim that the trial court erred in not giving certain tendered instructions and that the plaintiffs were thereby deprived of presenting their theory of the case to the jury. It is true that each party to the litigation is entitled to submit instructions as to their theory of the case. However, where as here, the theory has no foundation in the law, it would be error for the trial court to present such unfounded theory to the jury.
The final assignment of error is directed toward the claim that a number of the instructions which were given were not based on any evidence. We have examined the instructions given by the trial court and find no error.
The judgment is affirmed.
DWYER and DUFFORD, JJ., concur.