Opinion
April 22, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Yegge, Hall & Evans, James R. Benson, Jr., Denver, for plaintiff-appellant.
Joseph Paul Sears, pro se.
PIERCE, Judge.
In a suit based on its subrogation rights as insurer of an apartment house, plaintiff appeals from a judgment entered in favor of defendant following a trial to the court. Plaintiff alleged that defendant's negligence caused a fire loss in an apartment in which defendant had been a tenant.
The evidence was contradictory, but defendant testified that, because there was an unpleasant odor in his apartment, he had purchased two cones of incense and had placed one in his bedroom and another in the living room. The cone which was in the living room had been on a make-shift table constructed from a portion of a telephone cable spool. The cone had been placed on the table in a 'ceramic' dish which had been made by a friend. He had ignited both pieces of incense and then had blown then out and left them to smolder. He later left the apartment, temporarily, and he testified that it was his belief that the incense was no longer burning when he left. When he returned, he found that there had been a fire in the living room, but not in the bedroom.
The trial court concluded that the fire in the living room had been caused by the burning incense and that the damages complained of were a result of the fire, but the court further ruled that plaintiff had failed to sustain its burden of proving that the fire was the result of negligence on the part of defendant.
Plaintiff asks us to rule as a matter of law that the defendant acted negligently. Under the disputed facts in this case, we cannot do so as it was within the province of the trier of fact to determine whether or not defendant acted as a reasonably prudent person in the manner in which he handled the incense. Cf. Eisenhart v. Loveland Skiing Corp., 33 Colo.App. 120, 517 P.2d 466. On this appeal, plaintiff has contended that the doctrine of Res ipsa loquitur should have been applied, thereby placing the burden on defendant to prove that his actions were not negligent. Plaintiff's motion for new trial and accompanying brief focused exclusively on specific acts by defendant which plaintiff contended were negligent as a matter of law; neither the motion nor the brief in support thereof raised the applicability of the doctrine of Res ipsa loquitur. This court will not resolve questions not raised in the motion for new trial. C.R.C.P. 59(f).
Judgment affirmed.
ENOCH and STERNBERG, JJ., concur.