Opinion
Rehearing Denied March 23, 1971.
Page 526
Frickey & Myrick, William E. Yrick, Theodore M. Smith, Denver, for plaintiffs in error.
Aklot, Shepherd, Dick & Rovira, Stuart S. Gunckel, Arthur T. Voss, Denver, for defendant in error.
DUFFORD, Judge.
The parties appear here as they did in the trial court, and we shall refer to them by their trial court designations or by name.
At issue in the trial of this matter was whether the defendant's negligent maintenance of a telephone line to the plaintiffs' home was the proximate cause of injuries suffered by Mrs. Rietveld when she was struck by lightning. This issue was submitted to the jury, which returned a verdict in favor of the defendant. Plaintiffs have appealed, alleging several points of error. Defendant cross appeals, contending that, as a matter of law, there was no evidence of negligence and that it was entitled to a directed verdict.
In this appeal, counsel for the plaintiffs (who were not the trial counsel) primarily argue that eight instructions given by the trial court were in error. The record reveals that no objection was made at trial to such instructions, and so their propriety will not be considered here. Ross v. Colorado National Bank, Colo., 463 P.2d 882; Lewis v. Harp, 132 Colo. 228, 286 P.2d 627. Similarly, plaintiffs' argument that defendant is liable on the theory of strict statutory liability will not be considered since it is raised for the first time on this appeal. This case was pled and tried solely upon the theory of actual negligence on the part of the defendant, and a modification of issues cannot be made upon review. Carlberg v. Willmott, 87 Colo. 374, 287 P. 863; and See Flader v. Simonsen, 148 Colo. 480, 366 P.2d 678.
It is also contended on behalf of plaintiffs that the defendant was liable under the doctrine of Res ipsa loquitur. We hold that the trial court properly ruled that the doctrine of Res ipso loquitur had no application in this case and affirm its ruling refusing to instruct the jury on that doctrine. The record reveals that there was evidence presented at trial from which it could be concluded that Mrs. Rietveld's injuries were caused only by an Act of God and independently of any negligence on the part of the defendant. The doctrine of Res ipsa loquitur may be applied only in those instances where, among other things, an accident occurs which ordinarily could not occur in the absence of negligence on the part of the defendant. Such requisite element was not present here, and the trial court's determination on this question was correct. Weiss v. Axler, 137 Colo. 544, 328 P.2d 88; Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344.
Plaintiffs' final contention of error is that the trial court erred in failing to admit into evidence two documents, one being the defendant's written installation standards (which were promulgated after the date of the accident) and also a copy of a National Electrical Code which was compiled by a private association. These documents form no part of the record which is before us. They were never marked for identification nor offered as exhibits. There is nothing before us upon which we can make a determination as to whether the trial court's ruling on admissibility was correct or incorrect. In such a void, we cannot rule there was error. Commonwealth v. Hanley, 337 Mass. 384, 149 N.E.2d 608; and See Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521.
The defendant's contention that it was entitled to a directed verdict need not be considered in view of the judgment in its favor which was secured below and which is sustained here.
Judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.