Opinion
May 13, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert W. Hansen, Denver, for plaintiff-appellant.
Williams, Erickson & Wallace, P.C., Wayne D. Williams, James R. Crassweller, Denver, for defendant-appellee.
VanCISE, Judge.
Plaintiff Mr. Saborsky appeals the judgment entered on a jury verdict against him in his action for damages for the wrongful death of his wife. We affirm.
On April 23, 1973, Mrs. Saborsky and Mrs. Flanigan were in an automobile collision. Mrs. Saborsky died as a result of injuries received in that collision. Thereafter, alleging that Mrs. Flanigan was negligent, Mr. Saborsky brought this action. Mrs. Flanigan defended on the basis of Mrs. Saborsky's negligence.
At the conclusion of the trial, all issues were submitted to the jury on special instructions pursuant to s 13--21--111, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 41--2--14(2)). See 1975 Supp., C.J.I. 9:33. By its special verdict, the jury found that Mrs. Flanigan was negligent but that this negligence was not a proximate cause of Mr. Saborsky's claimed damages, that Mrs. Saborsky was contributorily negligent and that her negligence was a proximate cause of the damages. Judgment was entered for Mrs. Flanigan based on this verdict.
On appeal, Mr. Saborsky contends the evidence was insufficient to support the jury's special verdict that defendant's negligence was not a proximate cause of the claimed damages and that the decedent was contributorily negligent.
Where there is conflicting testimony and where reasonable men might draw different conclusions therefrom, issues of negligence and proximate cause are to be determined by the jury. Fowler Real Estate Co. Inc. v. Ranke, 181 Colo. 115, 507 P.2d 854; Pioneer Construction Co. v. Richardson, 176 Colo. 254, 490 P.2d 71. Negligence can exist without its being a proximate cause of the injury. See Cash v. Minnequa Bank, 162 Colo. 236, 426 P.2d 767; Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145.
Conflicting evidence was presented here concerning the manner in which the collision occurred. Viewing the evidence most favorably to the prevailing party, as we must, Beardshear v. Beardshear, 163 Colo. 333, 432 P.2d 235; McQueen v. Robbins, 28 Colo.App. 436, 476 P.2d 57, it appears that both vehicles entered the intersection on a yellow light. Westbound Mrs. Saborsky commenced a slow left turn immediately in front of Mrs. Flanigan's eastbound vehicle. Mrs. Flanigan failed to see the Saborsky vehicle turning into her lane of travel until just before, and she was not able to react in time to avoid the collision. This evidence is sufficient to support the jury verdict, and it is therefore binding on review. Santilli v. Pueblo, 32 Colo.App. 312, 511 P.2d 928.
Additionally, Mr. Saborsky contends that it was error for the court to admit testimony from decedent's psychiatrist concerning the strained relationship between Mr. Saborsky and his wife. This evidence was offered and admitted solely on the issue of damages. However, the jury found against Mr. Saborsky on the liability issue and thus determined that he was not entitled to recover at all. Under such circumstances, claims of error relative to the admission of evidence on damages are moot. Schlesselman v. Gouge, 163 Colo. 312, 431 P.2d 35; Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861.
Judgment affirmed.
RULAND and STERNBERG, JJ., concur.