Opinion
Martin, Riggs & Henshall, P.C., Marshall T. Riggs, Boulder, for plaintiff-appellant.
Burnett, Watson, Horan & Hilgers, Myron Burnett, Denver, for defendant-appellee.
DWYER, Judge.
This is an action to recover damages for personal injuries sustained by Eric S. Herness, a minor, in an automobile-pedestrian collision. The case has been tried twice. The first trial was terminated by a directed verdict for defendant. On appeal, this court reversed the judgment and ordered a new trial. Herness v. Goodrich, 29 Colo.App. 322, 483 P.2d 412. On retrial, the jury returned a verdict for defendant. Plaintiff has appealed the judgment entered on the verdict. We affirm.
On May 18, 1965, defendant was driving his automobile south on Knox Court in Denver, Colorado. Plaintiff, a child about four years of age, ran into the street and collided with defendant's automobile. The facts are stated in detail in Herness v. Goodrich, Supra, and since the evidence at both trials was the same in all material aspects, they need not be restated. Plaintiff first contends that the court should have directed a verdict in his favor on the issue of liability. We reject this contention. In our previous opinion we stated:
'Although we do not hold as a matter of law that the evidence was sufficient to warrant a directed verdict for the plaintiff on the issue of negligence, as in Benallo v. Bare, ( 162 Colo. 22, 427 P.2d 323) we do hold that the plaintiff presented sufficient evidence to establish a prima facie case of negligence. The court should take the issue of negligence from the jury only in the clearest of cases where the facts are undisputed and reasonable men could draw but one conclusion therefrom. Blount v. Romero, 157 Colo. 130, 401 P.2d 611; Patterson v. Becker, 122 Colo. 258, 222 P.2d 780.'
The evidence at the second trial was not materially different, and it did not require the court to direct a verdict for plaintiff.
Plaintiff also contends that the court erred in its instructions to the jury. The court instructed the jury that its verdict should be for the plaintiff if it found that defendant was negligent and that defendant's negligence was the proximate cause of plaintiff's injuries. With respect to the defendant's duty, the court instructed the jury as follows:
'The law imposes upon a motorist a duty to exercise care and caution to avoid striking pedestrians, and this is especially so when the pedestrians involved are children. A motorist is not at liberty to presume that children will behave reasonably and carefully for their own safety, but must take into account the heedlessness and indiscretion common and usual among small children, including a disposition to run or dart into streets and highways, and must anticipate this possibility when in the presence of children, taking all reasonable measures to protect against the dangers from his vehicle, those who by youth, inexperience, indiscretion or otherwise may be less able to protect themselves.'
The instruction adequately instructed the jury on defendant's duty to plaintiff and stated plaintiff's theory of the case. It should be stated that defendant objected to this instruction. Such objection is moot and not an issue on this appeal.
Plaintiff asserts that certain instructions given by the trial court were improper. None of the instructions complained of were inconsistent with the above quoted instruction. The court's instructions to the jury are to be read and considered as a whole in determining whether all the necessary law has been correctly stated to the jury. Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 470 P.2d 34; Frazier v. Edwards, 117 Colo. 502, 190 P.2d 126. The instructions, considered as a whole, adequately set forth the law applicable to the case.
The plaintiff also contends that the court committed reversible error in refusing to instruct the jury that a child of plaintiff's age is incapable of contributory negligence. Contributory negligence was not an issue in the case and the court did not instruct that contributory negligence constituted a defense. Though a tendered instruction is a correct abstract statement of the law, refusal to give such instruction is proper when such instruction is not applicable to an issue submitted to the jury. Riss & Co. v. Galloway, 108 Colo. 93, 114 P.2d 550. The court specifically instructed that plaintiff was entitled to recover if the evidence established negligence on the part of the defendant. Under the circumstances, it was not reversible error to refuse the tendered instruction.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.