Hanlon v. Woodhouse ( 1945 )

On Petition for Rehearing. In their petition for rehearing counsel for plaintiff suggest that we misapprehended their argument when we stated in our opinion that, "counsel for plaintiff argue that instruction No. 8 was proper, and rely uponBarsch v. Hammond, 110 Colo. 441, 135 P.2d 519, andHertz Driv-Ur-Self System v. Hendrickson, 109 Colo. 1,121 P.2d 483." They state that those two cases were cited solely to support the proposition that negligence which is not a proximate cause of an injury is not actionable and were in answer to defendant's argument that plaintiff was guilty of acts of contributory negligence, and that instruction No. 8 removed these acts from the jury's consideration. Counsel then reiterate the statement which they made in their answer brief: "The only duty of the court is to instruct the jury as to the law in so far as it pertains to the case. In this case, if the defendant was driving on his side of the road, then he could not be guilty of contributory negligence, for the defendant did not contend and the evidence did not show, that he was guilty of any other act of negligence."

We disagree with counsel on both of these points, for we believe that defendant's pleading does allege that plaintiff was guilty of other acts of negligence and, as already stated in our opinion, there was evidence introduced to support that allegation. The error of instruction No. 8 is, that the jury was compelled to disregard that evidence if they found that plaintiff Woodhouse was on his right side of the road at the time of the collision. On the latter point, there was no contention that he was not. By insisting that Barsch v. Hammond,supra, and Hertz-Driv-Ur-Self System v. Hendrickson,supra, were not offered in direct support of instruction No. 8, counsel leave no authority to support their position that instruction No. 8 is a proper one.

The petition for rehearing is denied.