Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Damages award of $82,000 to wife who suffered a multiple fracture of her leg, three operations, several months of hospitalization, loss of income, and permanent disability was not excessive or the result of passion or prejudice.
Page 957
Thomas T. Crumpacker, Aspen, for plaintiff-appellee.
Yegge, Hall & Evans, Raymond J. Connell, Denver, for defendants-appellants.
ENOCH, Judge.
This is a tort action for damages for personal injuries suffered by plaintiff, Sharon Thibeau, while riding as a passenger on a motorcycle operated by her husband. Plaintiff was struck by an automobile operated by defendant Jennifer Morse Wicks and owned by her father, defendant Edward Morse. Defendants appeal the judgment entered in favor of plaintiff. We affirm.
Plaintiff, Timothy Thibeau, was denied recovery by the jury and does not appeal. The Thibeaus' claims against a third defendant, Cathleen Daunais, were denied by the jury, and that matter also is not involved in this appeal.
In September 1970, plaintiff and her husband were traveling on a narrow roadway identified as Lenado Road in Pitkin County, en route to visit mutual friends. The evidence indicated that defendant Wicks made a wide right turn from a side road onto Lenado Road, crossing over the center of the road into plaintiffs' lane. There was conflict in the evidence as to whether the side road was a public or a private roadway. There was also evidence that Mr. Thibeau was unable to stop the motorcycle safely and was forced to try to maneuver between defendant's oncoming car and a car which was parked on the side of the road. Plaintiff's left leg was struck by defendant's vehicle and was severely injured.
The jury returned a verdict for plaintiff in the amount of $82,000. Defendants assert that the trial court erred in giving two improper jury instructions and in denying defendants' motion for a mistrial. They also assert that the amount of the verdict was excessive.
I.
Defendants contend that Instruction 9 was improper because it assumed the existence of a material fact in controversy, namely whether the side road was public or private. The instruction advised the jury that the following statutes were in full force and effect: C.R.S.1963, 13--5--32(1) (pertaining to careless driving); C.R.S.1963, 13--5--37(1)(a) and (c) (pertaining to driving on the right side with exceptions); C.R.S.1963, 13--5--45(1)(a) and (b) (pertaining to turning at intersections); and C.R.S.1963, 13--5--54 (pertaining to entering the highway from a private road), and further stated:
'A violation of any of the above statutes constitutes negligence as negligence is elsewhere defined in these instructions.
If you find such a violation by any party, you may consider if it you also find that it was a proximate cause of the accident.'
C.R.S.1963, 13--5--54, provides that the driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to approaching vehicles. Defendants assert that whether the side road was private or public was at issue, and that the inclusion of C.R.S.1963, 13--5--54, amounted to a determination by the court as a matter of law that the side road was a private road and therefore misled the jury into believing that this statute was applicable. We find no merit in this contention.
Since there was evidence that the side road was a private roadway it was proper to include in the instruction the private road statute (C.R.S.1963, 13--5--54). Its applicability, which was left to the jury, depended upon the prior factual determination by the jury of whether the road was in fact private. The error, if any, in the instruction was the failure to include the statute relative to public road intersections, C.R.S.1963, 13--5--51. The record discloses that the court prepared the instruction with this statute included; however, the defendant objected to the inclusion of this statute in the instruction and the court sustained the objection and removed it. Where an error has been induced into the instruction by the defendant's own action he cannot rely on that error as a ground for reversal. See Heimbecher v. City and County of Denver, 90 Colo. 346, 9 P.2d 280; Little Dorrit Gold Mining Co. v. Arapahoe Gold Mining Co., 30 Colo. 431, 71 P. 389.
II.
Defendants also object to Instruction 6, which directed the jury as a matter of law that any negligence of plaintiff's husband could not be imputed to her. Defendants admit the general rule that negligence of a driver of a motor vehicle may not be imputed to a passenger-plaintiff, but assert that this rule is inapplicable here because passenger and driver were joint venturers.
The negligence of a driver can be imputed to his passenger where there is a joint enterprise, I.e., where two persons share a common purpose and a right to control a vehicle. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185; Bainbrich v. Wells, 28 Colo.App. 432, 476 P.2d 53, aff'd, 176 Colo. 503, 491 P.2d 976. The plaintiffs were sharing a common purpose since they were going to visit mutual friends. However, absent further proof of right of control, common purpose and the existence of a marital relationship are insufficient to infer joint enterprise. Bainbrich v. Wells, Supra.
Defendants assert that testimony that plaintiff's husband honored certain of her wishes concerning his manner of driving, particularly concerning speeding, raises a jury question as to joint venture. We disagree. A husband-driver's willingness to acquiesce in the reasonable desires of his wife-passenger, in particular respecting speeding, does not establish right of control. See Powell v. City of Ouray, 32 Colo.App. 44, 507 P.2d 1101; 65 A C.J.S. Negligence s 168(12); Newman v. Hotz, 226 Iowa 834, 285 N.W. 287; Lapp v. J. Laueson & Co., 67 S.D. 411, 293 N.W. 536; Virginia Transit Co. v. Simmons, 198 Va. 122, 92 S.E.2d 291. Under the facts of this case we find no error in the giving of the challenged instruction. III.
Defendants finally assert that the damages awarded plaintiff were excessive. It is within the exclusive province of the jury to determine the amount of damages, and we may not interfere with the amount of a jury verdict unless it appears to be the result of passion or prejudice. Kohut v. Boguslavsky, 78 Colo. 95, 239 P. 876. In view of evidence indicating a multiple fracture of plaintiff's leg, three operations, several months of hospitalization, a resultant loss of income, and permanent disability, we do not find the verdict to be excessive or the result of passion or prejudice.
Judgment affirmed.
BERMAN and KELLY, JJ., concur.