Opinion
March 11, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 70
Montgomery, Little, Young, Ogilvie, Campbell & McGrew, P.C., J. Bayard Young, John J. Gaudio, P.C., Denver, for plaintiff-appellee.
Bruce & Thurman, T. B. Thurman, Denver, for defendant-appellant.
PIERCE, Judge.
Defendant Cowles appeals from a judgment entered on a jury verdict awarding $11,500 damages to plaintiff Whitfield for injuries suffered when an automobile driven by Cowles collided with the rear of an automobile occupied by Whitfield. We affirm.
Cowles admitted 'liability' for the collision, basing his defense solely upon the theory that Whitfield's injuries were not proximately caused by the collision. To establish his defense theory, he did not attempt to present any evidence during the trial, but relied entirely upon cross-examination of Whitfield, Whitfield's wife, and Whitfield's two expert medical witnesses. Cowles raises two assignments of error regarding the trial court's instructions to the jury and maintains that the damages award was excessive.
Colorado Jury Instructions 2:4 and 9:24 were given to the jury, thus suggesting that the issue of proximate cause was submitted to the jury for its determination. However, Cowles contends, and Whitfield does not dispute, that the trial court in effect directed a verdict on proximate cause by refusing to submit a defendant's verdict form to the jury, and by omitting the optional words 'if any' when it gave Colorado Jury Instructions 2:4. Since Whitfield does not contest Cowles' characterization of the instructions, we will assume for purposes of this appeal that the instructions did, in effect, direct a verdict in favor of Whitfield on the Proximate cause issue.
Based on this characterization of the instructions Cowles maintains that there was conflicting evidence and that reasonable men might have reached different conclusions from the evidence, and that, therefore, the question of proximate cause should have been left to the jury rather than decided by the court in Whitfield's favor.
The collision caused Whitfield to be forced backward against the car seat, and then propelled forward, his shoulder hiitting the deshboard. Whitfield testified, without contradiction, that he had no pain in his neck prior to the collision, but that he experienced pain and motion limitation immediately after the collision. His testimony was corroborated by the expert medical witnesses who testified that Whitfield's pain was caused by a sprained neck and a compression fracture of the fourth thoracic vertebra, which sprain and fracture resulted from the collision. Testimony elicited on cross-examination did not contradict any of this evidence. Under this state of the evidence, the only conclusion that reasonable men could reach is that Whitfield suffered pain and other damages which were proximately caused by the collision. Therefore it was not improper for the trial court to take the proximate cause issue from the jury. See Bates v. Stagg, 157 Colo. 456, 404 P.2d 530; Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145.
Cowles' second assignment of error is that the trial court erred in submitting Colorado Jury Instructions 6:8 (the Newbury instruction) to the jury because there was no evidence of aggravation of a pre-existing condition. We agree that an instruction should not be given if it is not supported by evidence. Houser v. Eckhardt, 168 Colo. 266, 450 P.2d 664. However, one of the expert medical witnesses opined that the compression fracture would, in the future, cause an aggravation of Whitfield's arthritic condition. This testimony was sufficient to warrant the giving of the Newbury instruction. See Brittis v. Freemon, Colo.App., 527 P.2d 1175.
Cowles also asserts that the jury award was excessive. Jury verdicts in personal injury actions will not be set aside on appeal unless the award is grossly and manifestly excessive. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450; DeMott v. Smith, 29 Colo.App. 531, 486 P.2d 451. Whitfield's medical expenses amounted to only slightly over $200, and he missed only one day's wages, amounting to approximately $33. However, Whitfield and his wife testified that he had been awakened by pain several times each night since the collision, and that the distress was getting neither better nor worse with the passage of time. One of the expert medical witnesses testified that the damage to Whitfield's spine was permanent and irremediable. Under all the circumstances of this case, we cannot conclude as a matter of law that the jury verdict was grossly excessive.
Judgment affirmed.
ENOCH and STERNBERG, JJ., concur.