Missouri Pacific Railway Co. v. Leib ( 1913 )

Morgan, J.

Appellee was one of the automobile party in Missouri Pacific Railway Company v. Atkinson, just decided, and as that case is reversed and remanded on account of errors concerning the issues, the proof and the instructions, involving the public highway, all of which appear in this case, the judgment herein, for such errors, is reversed and the cause remanded, with the same directions. There are two questions discussed on this appeal, however, which “are not involved in the other case, that should be disposed of in view of another trial.

1. The lower court permitted the name of Corinne Leib to be substituted for that of her father, in whose name the action was pending until she became old enough to maintain the action in her own name. This was not error, as it appears in the complaint that the action was for such damages, only, as could be recovered by the daughter, and, while the complaint should have contained apt language that the father sued as next friend or natural guardian, the court was, nevertheless, justified in permitting the substitution.

2. Concerning the contention that the jury should have been instructed that, “if they believed from the evidence that the driver’s negligence was the proximate cause of the injury the plaintiff could not recover,” the opinion in the case of Denver City Tramway Co. v. Armstrong, 21 Colo. App., 640, recently decided by this court, will serve as a sufficient guide on another trial, to both court and counsel.

Reversed and Remanded.