Opinion
April 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1067
Frank A. Bruno, Louis B. Bruno, H. D. Reed, Denver, for plaintiff-appellee.
Goss & Gleason, Douglas K. Goss, Denver, for defendants-appellants.
DWYER, Judge.
Plaintiff, Fred H. Perry, brought this action to recover damages for personal injuries he sustained when the automobile he was driving was struck by an automobile driven by defendant Lynel Cagg and owned by Lynel's father, the defendant Floyd Cagg. The action was tried to a jury which resolved the issues of negligence and contributory negligence in favor of plaintiff and assessed his damages in the amount of $12,000. The defendants have appealed the judgments entered on the verdict. We affirm.
The collision occurred on Colorado Boulevard where it passes over Interstate 70, an east-west highway. Colorado Boulevard, running north and south, is a divided highway with three northbound and three southbound lanes separated by a median strip six to seven feet wide. Westbound traffic on Interstate 70 has access to Colorado Boulevard by an 'off ramp' which intersects Colorado Boulevard at its eastern boundary. At the time of the accident, a stop sign was located at the entrance to Colorado Boulevard from the off ramp, and vehicles entering Colorado Boulevard were required by an ordinance of the City and County of Denver to stop at the sign and to yield the right of way to vehicles on Colorado Boulevard.
Plaintiff testified that on the date of the accident he was driving west on Interstate 70. He intended to leave Interstate 70 and to drive south on Colorado Boulevard. He testified that he left Interstate 70 on the off ramp and stopped at the stop sign at the entrance of Colorado Boulevard. He waited at the stop sign until Colorado Boulevard was clear of oncoming traffic and then drove across the three northbound lanes into the median where he stopped because of traffic in the southbound lanes. The rear end of his vehicle protruded into the inside northbound lane. While in this position, the plaintiff's vehicle was struck in the left rear end by defendants' vehicle. Plaintiff and several of his witnesses testified that the defendant Lynel Cagg was driving his vehicle at an excessive rate of speed.
The principal question on appeal is whether, as a matter of law, the plaintiff was guilty of contributory negligence.
Defendants do not question the sufficiency of the evidence to establish the negligence of the defendant Lynel Cagg. They contend, however, that the uncontroverted evidence in the record establishes that plaintiff failed to keep a proper lookout and failed to yield the right of way and that plaintiff was therefore contributorily negligent as a matter of law. The record does not support defendants' position. Plaintiff testified that after he stopped his car at the stop sign on the exit ramp, he looked to the north and to the south of the Boulevard and determined that the roadway was clear. Plaintiff had an unobstructed view to the south for a distance of 500 to 600 feet, but his view beyond that distance was obstructed by the crest of a hill. He testified that he looked south and that defendants' car was not in view when he entered Colorado Boulevard. If this testimony is true, then defendants' car was not 'within the intersection or approaching so closely as to constitute an immediate hazard,' and plaintiff did not violate the right-of-way ordinance by driving onto Colorado Boulevard. Plaintiff's testimony was not so inherently incredible as to be without probative force, and it therefore constitutes a sufficient basis for the jury's finding that plaintiff was not guilty of contributory negligence. See Amos v. Remington Arms Co., 117 Colo. 399, 188 P.2d 896; Andrus v. Hall, 93 Colo. 526, 27 P.2d 495; and Boyd v. Close, 82 Colo. 150, 257 P. 1079, in which cases the Supreme Court has announced the rules of law applicable to 'right-of-way cases.'
Defendants also assert that the court did not adequately instruct the jury on their theory of the case.
The court instructed the jury on the right-of-way ordinance, told them that a violation of such ordinance was negligence per se, and stated that if plaintiff violated such ordinance or was otherwise contributorily negligent and such violation or negligence was a proximate cause of the accident, plaintiff could not recover. The court submitted Colorado Jury Instructions 9:10 to the jury, which provides:
'To look in such a manner as to fail to see what must have been plainly visible is to look without a reasonable degree of care and is of no more effect than not to have looked at all.'
The instruction of the court sufficiently stated the law applicable to defendants' theory of the case, and the court was not in error in refusing to further instruct the jury that: 'There is a duty upon a driver to maintain a proper lookout to see what he could and should have seen in the exercise of reasonable care.'
The defendants further assert that the court was in error in giving three separate instructions on speed. Defendants do not contend that any of the instructions were in themselves erroneous, but they contend that the cumulative effect of the three instructions on speed unduly and prejudically emphasized plaintiff's theory of the case. All of the instructions on speed were proper statements of the law, and all were justified by the evidence. The instructions were therefore properly submitted to the jury. The defendants also contend on appeal that the instruction on damages was erroneous. The instruction complained of is Colorado Jury Instructions 6:1 modified to conform to the evidence by deletion of 'loss of earnings or impairment of earning capacity' as an element of damages. Defendants contend that the court should have deleted 'permanent injuries' and 'future medical expenses' because such items of damage were not established by expert medical testimony. However, our Supreme Court has held that expert medical testimony concerning such items of damage is not indispensible and that permanent disability, future pain or suffering, and future medical expenses may be established by other evidence which is sufficient to warrant consideration by the jury in assessing damages. Ce Buzz, Inc. v. Sniderman, Colo., 466 P.2d 457.
The evidence in this case showed that plaintiff's health was good prior to the accident and that as a result of the accident, he received and was treated for injuries to both knees, a fractured rib, torn thoracic cartilage, lacerations and bruises on his scalp and forehead, and injuries to his back and neck. Plaintiff testified at the time of trial that he still suffered from headaches and pain in his back, shoulders, neck, and thoracic region, and was taking 'pain pills' prescribed by his doctors. He 'pain pills' prescribed by his doctor. He his knee and could not go up and down ladders as well as before the accident, this activity being a requirement of his occupation. As a result of the injuries to his head, plaintiff received two permanent scars; one, three inches long, and the other, one and one-half inches long. This evidence was sufficient to authorize the court's giving of its instruction on damages.
Finally, defendants contend that the amount of damages awarded by the jury is excessive. The jury's verdict of $12,000 is not, under the evidence in this record, so large that it indicates bias or prejudice on the part of the jury, and it is not, as a matter of law, excessive.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.