Opinion
No. 17,485.
Decided August 15, 1955. Rehearing denied August 29, 1955.
Action for damages for wrongful death resulting from automobile accident. Judgment for plaintiff.
Affirmed.
1. APPEAL AND ERROR — Instructions — Companion Case. That the giving of an instruction on the subject of negligence in a companion case was held to be error, will not be held error in the instant case where counsel for defendant consented to the giving of such instruction.
2. Instructions — Objection. To justify a reversal for the giving of an erroneous instruction, proper objection thereto must appear in the transcript.
Error to the District Court of Pueblo County, Hon. J. Arthur Phelps, Judge.
Mr. JOHN A. McCARTHY, for plaintiff in error.
Mr. LAURENCE A. ARDELL, for defendant in error.
IN the trial court plaintiff in error was defendant and defendant in error was plaintiff. We will refer to the parties as they there appeared, or by name.
The instant case arose out of the identical facts detailed in Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055. Counsel for the respective parties throughout this litigation are the same counsel who appeared in Lewis v. Oliver, supra.
Plaintiff, mother of Wanda Harp, instituted this action to recover damages under the wrongful death statute, and had a verdict and judgment in her favor. Under the pleadings and plaintiff's theory of the case Wanda Harp was a guest in the automobile which crashed, resulting in her death. Defendant brings the case here by writ of error.
The sole ground urged for reversal is that the trial court erred in giving instruction No. 2 on the subject of ordinary negligence. The submission of this instruction was held to be error in Lewis v. Oliver, supra. Based on the ruling in that case, we are urged to reverse this judgment and order a new trial. Just before the instructions were settled, counsel for defendant stated to the trial court: "So far as I am concerned, the instructions in the last case are good enough for me." The "last case" referred to is Lewis v. Oliver, supra. Thereupon the trial court instructed the jury in the instant case as it had in the former case. Counsel for defendant made no objection to the giving of instruction No. 2, concerning which he now complains. In the trial court he consented to all the instructions which were given.
In order to justify a reversal for the giving of erroneous instructions, proper objection thereto must appear in the transcript. Here, not only does no objection appear, but counsel consented to the instructions as given, hence we cannot consider the single point now urged for reversal.
Judgment affirmed.