Hunter v. Quaintance , 69 Colo. 28 ( 1917 )

Mr. Justice Teller

delivered the opinion of the court.

The defendant in error recovered a judgment against the plaintiff in error in an action for damages to an automobile, alleged to have been caused by negligenceT

The complaint charged that the defendant and his servant “so carelessly and negligently drove and operated said Pierce Arrow automobile that, * * * by reason of said carelessness and negligence defendant’s Pierce Arrow automobile struck and forced plaintiff’s Oakland automobile off of the aforesaid highway and overturned, broke, wrecked and injured it, to plaintiff’s damage in the sum of $890.00.”

One witness for plaintiff, who was riding in plaintiff’s car, testified that he heard the defendant’s car strike plaintiff’s ear, and that he felt a jar; but none of the three other occupants of it gave any testimony to that effect. Plaintiff’s brother, who was driving the car, testified that while he was going toward Golden, at 20 to 25 miles per hour, he saw a car with very bright and dazzling lights coming towards him, and that when it was about 10 feet from him, he turned his car to the right, and the defendant’s car “shot between the two cars”; that his car skidded when it struck the soft part of the road, and turned over. He knew there was a car behind him when he began to turn out. He said, “My car was forced off the road by the car that passed me.”

Another of the occupants testified that “after the Hunter ear came in we waved a little, and turned over. As we were passing, Mr. Hunter’s car cut in when we were almost abreast and went in front of us.”

The other occupant testified that the plaintiff’s car turned to the right as the Hunter car was passing; “the Hunter car came along side; something whizzed past us; the Hunter car was going faster.” Evidence was received to show the cost of repairing the plaintiff’s car, the value of its use for two months, and the deterioration of value after such an accident. The jury found for the plaintiff and assessed his damages at $515.00.

A motion for a new trial was overruled on condition that plaintiff remit $168.50 from the verdict. This sum having been remitted judgmeñt'for plaintiff was entered for $346.50.

It will be necessary to discuss only a part of the errors assigned, the first of which is that it was error to admit evidence on or submit to the jury the question of the plaintiff’s damage by being deprived of the use of the car. It is urged that, the evidence showing that the car was used only for purposes of pleasure, there is no basis for estimating the damage from the loss of such use. Cases are cited which hold that the damage from such a source is too speculative to be considered. We are inclined to agree with that opinion.

But there is a more serious objection to the evidence on that point in the fact that damage from loss of use was not pleaded. Such damage is special and without the averment of the facts from which it is to be inferred, the defendant had no reason to be prepared to meet it. If it was to be included in the damages, it was important to determine not only how long the car was oiut of use, but whether or not the disuse for such a time was necessary. Clearly, the plaintiff could not in any event, recover for such a loss unless he showed that the repairs were made with reasonable promptness. On that question the defendant was entitled to notice and time for preparation, and that is the basis of the rule that special damages must be specially pleaded. The rule is too well established to require citation of authorities to support it.

It is also assigned as error that the question of negligence submitted to the jury was not confined to the act of negligence alleged in the complaint as the cause of the accident. This court is committed to the doctrine that when reliance is placed on particular acts of negligence the proofs must be confined to those acts. Denver Cons. E. Co. v. Walters, 39 Colo. 301, 89 Pac. 815. This ijule also is based upon the just requirement that the defendant be not called upon to defend on a charge of which he has no notice. He may properly conclude that the case will not involve his acts other than those charged to have caused the injury. It follows, of course, that the jury must be limited to the consideration of the specific acts charged. Instruction No. 3, violates thip rule. It reads:

“The court instructs the jury that if you believed from the evidence the injuries complained of were caused by the negligence or carelessness of the servant or chauffeur of Hunter in the course of his employment, either with or without negligence or fault on the part of the driver of Quaintance’s automobile, or without any such negligence on his part as contributed to the injuries complained of,- or with no want of such care and skill on his part as could reasonably be expected of a man of ordinary prudence and skill in such a situation, then you must find for Quaintance.”

This left the jury at liberty to find, if they saw fit, that the injury resulted from any act of defendant which they thought was negligent. Possibly they found that defendant was negligent in coming up so fast without warning; or that the injury was caused by defendant’s car cutting in ahead of plaintiff’s car. The giving of that instruction was error.

Counsel contend that there was error in the admission of evidence, and in the overruling of the motion for a new trial on condition that plaintiff remit nearly one-third of the damages fixed by the verdict.

If there were error in these matters it may not occur again on another trial, and as the judgment must be reversed for the reasons above given, those assignments need not be considered.

The judgment is reversed, with leave to either party to amend as he may be advised.

Chief Justice White and Mr. Justice Garrigues dissent.