Opinion
Dec. 15, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 704
Goldsmith, Carter & Fleischman, P.C., George S. Carter, Richard A. Fleischman, Denver, for plaintiff in error.
Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This was an action to recover damages for personal injuries resulting from an automobile collision. Plaintiff brings this appeal from an adverse jury verdict, raising five questions as to error on the part of the trial court.
First: Did the trial court err in not appointing an interpreter for the plaintiff?
Plaintiff was born in Hungary and had lived in the United States for about 10 years prior to trial. Although plaintiff had some difficulty was the English language, an examination of the transcript reveals that he was able to understand counsel's questions and to give intelligible replies. The jurors were instructed to indicate whenever they had any difficulty understanding plaintiff's testimony. In addition, although plaintiff's counsel suggested the use of an interpreter, no objection appears in the record to proceeding without one. At a hearing held subsequent to trial, the trial judge stated that it was his recollection that proceeding without an interpreter was 'by agreement of counsel.' In any event it is our opinion, based upon a review of the record, that plaintiff's ability to speak and understand English was adequate and that the trial court did not abuse its discretion in not appointing an interpreter. Nesteroff v. People, 71 Colo. 208, 205 P. 531.
Second: Did the trial court err in giving the jury an instruction on contributory negligence?
The accident occurred in Denver on the Valley Highway shortly after five p.m. Traffic at this time was congested. The defendant's car struck plaintiff's car from behind. The defendant testified that plaintiff's car stopped abruptly without any apparent reason at a time when traffic in front of plaintiff was clear. The defendant further testified that he brought his car to a stop and was then struck from behind by a third car, the impact forcing his car into plaintiff's car. The driver of the third car also testified that plaintiff had stopped for no apparent reason. The defendant's testimony and that of the driver of the third car was sufficient to justify an instruction on contributory negligence. Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377.
Third: Did the trial court err in striking the testimony of a police officer?
The officer testified as to traffic conditions on the Valley Highway at a point approximately two miles from the scene of the accident. This testimony, if material, was merely cumulative and related to facts not in dispute. Hence, even if the trial court erred in striking the testimony it was harmless error and does not constitute grounds for reversal. R.C.P.Colo. 61.
Fourth: Did the trial court err in refusing to admit a hospital record into evidence?
The hospital record had no bearing on the liability issue. It was also cumulative in effect. Since the jury found for the defendant on the liability issue, any error in not admitting the record does not constitute grounds for reversal. Schlesselman v. Gouge, 163 Colo. 312, 431 P.2d 35.
Fifth: Did the trial court err in refusing to order the defendant to produce an accident report which the defendant made to his insurance company?
After a hearing on this question, apparently at which some evidence or testimony was considered, the trial court refused to order the defendant to produce his insurer's accident report on the grounds that plaintiff had failed to show any 'good cause' for an order of production as required by R.C.P.Colo. 34.
In a case of this type a party would normally have the right to compel the production of an insurer's accident report. See Jacques v. Cassidy, 28 Conn.Sup. 212, 257 A.2d 29. But this right is not absolute. McCoy v. District Court, 126 Colo. 32, 246 P.2d 619. In this case the record is void of any transcript of the hearing held on plaintiff's motion to produce. Absent such transcript we are unable to determine whether the trial court abused its discretion in denying the motion on the ground that no good cause was shown for an order of production. Such being the case the trial court's ruling will be affirmed. Laessig v. May D & F, 157 Colo. 260, 402 P.2d 183.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.