Opinion
April 27, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 808
Williams, Erickson & Wallace, P.C., R. Neil Quigley, Denver, for defendant in error David L. Sanborn.
White & Steele, Lowell M. Fortune, Denver, for defendants in error Roger D. Fee and Mildred Rothstein.
Litvak, Litvak, Schwartz & Karsh, P.C., Denver, for plaintiffs in error.
Boyle, Boyle & Imig, Herbert M. Boyle, Denver, for defendant in error Floyd O. Clark.
Margaret Bates Ellison, Denver, for defendant in error Sallie J. Sundine.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties are before us in their trial court positions and shall be referred to as plaintiffs or defendants or by name.
In the trial below, the plaintiffs sought damages for personal injuries and for the aggravation of pre-existing medical conditions. The injuries and aggravation of the pre-existing conditions were asserted to have been the result of a series of automobile collisions involving the plaintiffs and all of the defendants. The defendant Mildred Rothstein was dismissed from the action on the basis of statements made by counsel for the plaintiffs in his opening statement. That opening statement was not made a part of the record which is before us. As to all of the remaining defendants, this matter was submitted to the jury after a full presentation of evidence by both sides, and the jury then returned a verdict in favor of all of the defendants and against both plaintiffs. The plaintiffs have appealed from the judgment which was entered on the jury verdict.
In this appeal several grounds of error are charged by the plaintiffs, and we deal with them in the order in which they are presented to us.
I.
At the trial of this matter, it was the theory of the defendant Sallie J. Sundine, the driver of the sixth and last car involved in the collision, that her involvement did not contribute in any way to the impacts to which the plaintiffs' car was subjected. Under her theory, her involvement in the accident could not have caused any of the plaintiffs' alleged injuries. The evidence submitted by the defendant Sundine was to the effect that she stopped prior to collision, and that thereafter the fifth car in the line of colliding automobiles rebounded following its impact with the car ahead of it, striking her automobile only on rebound. Because of the defense theory of the defendant Sundine, and because of the possible concurrent involvement of all defendants, the trial court gave the two following instructions, among others:
'INSTRUCTION NO. 5: You are instructed that if an accident occurs in which a person is injured by reason of the negligence of two or more other persons, and the negligence of each of said other persons proximately contributed to the accident, then all of such persons are jointly and severally liable for any injuries proximately resulting therefrom if the person who was injured was in the exercise of ordinary care, and the degree of negligence which may be attributed to such persons so guilty of negligence is not to be considered by the jury on arriving at a verdict. In other words, the verdict in such case must be against such persons, jointly who are thus guilty of negligence, regardless of the degree of culpability.'
'INSTRUCTION NO. 10: You are instructed that your verdicts must be in favor of any defendant whose action, even if negligent, did not proximately cause or contribute to any impact or collision in which the plaintiffs' truck was involved; or if any such impact or collision, though caused or contributed to by such defendant, did not cause any injury to the plaintiffs.'
It is the plaintiffs' contention that these two instructions are contradictory and cannot be reconciled. Plaintiffs concede that Instruction No. 5 properly defines our law with respect to the liability of persons who are concurrently negligent and whose concurrent negligence causes injury, but argue that Instruction No. 10 is a negative repetition of the initial legal premise which is set forth in Instruction No. 5. We disagree. The purpose of Instruction No. 5 was to advise the jury that, under the law of this jurisdiction, if the negligence of two or more persons concurs to cause injury, all such persons are equally, jointly, and severally liable to the injured party without regard to the degree of negligence or to the degree of culpability that may be charged separately against each of such persons. It was instructive to the jury only with respect to defining the liability of those persons whose negligence concurred to cause the injuries complained of. Conversely, the purpose of Instruction No. 10 was to instruct the jury as to what it should do with respect to a defendant who, although perhaps negligent, did not by his negligence contribute to the accident or to the plaintiffs' injuries. The sole purpose of Instruction No. 10 was to define the lack of legal responsibility on the part of a defendant who was not involved, or if involved in the accident was not a causative force in the infliction of the plaintiffs' injuries. There is nothing in the instructions which would have led the jury into error and which would furnish the basis for a reversal on appeal. Mendez v. Pavich, 159 Colo. 409, 412 P.2d 223.
II.
Plaintiffs assert that it was error for the trial court to dismiss the defendant Mildred Rothstein on the basis of statements made by plaintiffs' counsel in the opening statement. In this appeal, plaintiffs have failed to make their counsel's opening statement a part of the record. Without that before us, we can make no determination as to whether the trial court incorrectly dismissed the defendant and, accordingly, must presume that he trial court's action in this regard was proper. Smith v. People, 1 Colo 121. Additionally, we note that the evidence presented at trial affirmatively showed the lack of any negligence on the part of this defendant.
III.
The trial court, over objections by the plaintiffs, admitted four medical reports prepared by the attending physician for the plaintiffs. These reports were accepted by the court for the purpose of impeaching the physician's testimony. Plaintiffs contend that there were insufficient grounds laid for impeachment, and that admission of the reports was error since the reports constituted hearsay evidence. Even if we assume that plaintiffs' position is correct, the admission of the reports does not constitute reversible error since the physician in question testified only on the issue of damages and the jury verdict ran against the plaintiffs on the issue of the defendants' liability. Panion v. Crichton, 144 Colo. 170, 355 P.2d 938.
IV.
Plaintiffs also object to the fact that the trial court allowed two witnesses to testify at the trial of this matter although the names of the witnesses were not listed until seven days before trial, whereas the local Rules of the Denver District Court require the listing of witnesses at least ten days in advance of trial. The local court rules in question specifically provide that a trial judge may modify the requirements in the interest of justice. This provision vests the trial court with a substantial amount of discretion. Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763. In view of the fact that a significant amount of pretrial notice was given to the plaintiffs concerning the appearance of the two witnesses, we rule that the trial court did not abuse its discretion in allowing the witnesses to testify.
V.
The fifth charge of error asserted by the plaintiffs is that the trial court erred in allowing counsel for one of the defendants to quote extensively from a deposition taken from one of the plaintiffs. That portion of the deposition in question was read during cross-examination of the deposed plaintiff and consisted of prior statements he had made as to the space and time consumed in stopping his vehicle. It was read after the plaintiff had testified on direct examination that he had not skidded when stopping his vehicle. It is obvious that the testimony given at trial and the statement read from the deposition ran to the question of whether the deposed plaintiff Irwin Suson had been guilty of contributory negligence. As to this issue, the trial court instructed the jury that there was no negligence nor contributory negligence on the part of the plaintiffs as a matter of law, and such issue never became a subject of jury consideration. Such being the case, whether statements from the deposition were or were not properly allowed to be read was immaterial and furnishes no basis for reversal here. Panion v. Crichton, Supra.
VI.
Plaintiffs' final contention is that they were entitled to a directed verdict against all of the defendants except Mildred Rothstein on the theory that all defendants conceded that they had collided with the vehicle in front of them. Plaintiffs direct our attention to an ordinance of the City and County of Denver which, in effect, makes it unlawful to follow a preceding vehicle too closely and which also specifies that the fact that vehicles collide shall be 'prima facie evidence' that a vehicle was following too closely. From this, plaintiffs argue that the liability of the defendants was established as a matter of law.
A motion for a directed verdict can only be granted where the evidence, when considered in the light most favorable to the party against whom the motion is directed, compels a conclusion that the minds of reasonable men could not be in disagreement. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778. The record in this case reveals evidence which could overcome the presumption raised by the ordinance, and also there is varying evidence on several other questions of fact which bear upon the possible liability of the defendants. Such being the case, it was proper for the trial court to submit this case to the jury for determination. Gomez v. Miller, 170 Colo. 106, 459 P.2d 126.
The judgment is affirmed.
COYTE and DWYER, JJ., concur.