*1 guardian litem defendants were in collusion with the ad preventing presentation of such any showing any a is there motion, neither suf- legal ground ficient therefor. existed plaintiff, fully an infant as here, Where has been represented by guard- trial of contested case competent ian ad litem counsel, in the absence of showing injustice, clear of fraud, collusion or he is resulting judgment bound statutes pertaining and rules of court in matters its review .to fully though legal age. as was of
Judgment including supple- affirmed, costs, that of plaintiff. mental abstract of record, to be taxed Justice Mr. Knous did not participate. 15,184.
No.
Mooney v. Carter.
(160 390) P. [2d] Rehearing July 2, Decided June 1945. 1945. denied *2 Mr. Clarence L. Ireland, for in error. Mr. William E. Hutton, Mr. Bruce B. McCay, defendant in error.
En Banc.
Mr. Justice Stone delivered the opinion court. plain- October 19, 1939, in error, who was On engaged' special policeman, below, tiff as without uniform, at Cheesman Park in Denver, which had been police department closed to automobile traffic opera. account of the summer He been sta- had tioned at the corner of Ninth avenue and Humboldt pursuant street superior to instructions from his put had a barricade across the south half of Ninth ave- ordinary nue and in type the center of street the of sign bearing Closed,” words “Street on a stand thirty thirty-five high. placed about inches He had no barricade across the north side of the street because pass way of instructions to let cars which were on their large apartment garage to or from a house to which that gave street At access. about five o’clock in the after- noon defendant drove south Humboldt street with
her little her in a chair attached boy baby beside her a left- the front seat of coach automobile and made hand turn east on Ninth avenue for the purpose she admits driving Although seeing through park. which was on the side of the street she barricade travel, should she did not but continued past stop, Plaintiff, Ninth avenue. who along barricade easterly corner, stood at the northeast intersection attempted he ran her car her, and she did not when and climbed on the board her that cars were not permitted park. telling and swerved the She suddenly up thereupon speeded him him serious causing off and car, throwing injuries. action, assault and result, brought charging As a his trial in the dis- seeking damages injuries. Upon returned in his favor and judg- trict court verdict was Defendant filed motion to vacate ment entered thereon. trial, which was granted, and for new judgment review, the matter here for has brought and plaintiff be verdict reinstated to- asking thereon. with the favorable gether The first to be' whether, determined is urged by error, the order- the new granting trial was a below matter within the discretion of the trial court. motion therefor was based on the the evidence grounds was not sufficient to support verdict; the verdict was the evidence against evidence; and the weight contributory negligence; error in refusing instructions; insufficiency At the time this plaintiff’s complaint. motion was sus- tained, and with the consent upon request *4 defendant, of the court ordered that have ten to elect whether days within which accede ato new trial this and court, or have review elected to stand his case as made. ground
We do not know what upon court If trial. based other granted upon any new ground that of the or sufficiency weight evidence, than
271
discretionary,
it was not
and the
the rul-
correctness of
subject
weight
upon
is
to review.
If based
of
ordinarily
the evidence, it
is within the discretion of
subject
except
the trial court and is not
to review
where
palpably supports
the evidence
the verdict and there
ground
has been a clear abuse of discretion: “Where the
application
insufficiency
is
the evidence
against
the verdict;
the verdict
weight
unjust
inequitable,,
of the evidence; that it is
and
degree
and the like—a reasonable
discretion exists
deny
questions
allow
trial; and,
new
when the
application
ruling
involved in the
are close, the
court should not be interfered
On the
hand,
with.
other
ground
if the
of the motion relied
does not in fact
legal ground
exist, or does not constitute a
for a new
necessity
application
trial, or the
is the
result
applicant’s negligence,
the motion should be- denied
ruling
or the
held to be erroneous.”
Denver,
v.
333).
Clifford
(20
P. &
Co.,
P. R.
12
125,
S.
Colo.
See,
Pac.
Crosby
also, Hurt Nelson,
v.
In the case bar, however, the second reason apply. does not If the of the court below is *5 272 no retrial to a
sustained, jury; plaintiff there will be of a the verdict who asked for and received favorable stead the un will be its compelled accept the of the court. As was said by favorable judgment v. Smith, in Henrickson 82, 111 Wash. 189 Pac. court “* * * 550: has the absolute to have litigant right of fact submitted to the determina disputed questions as as the court, tion of a well trial jury. appellate court, has to see such are power questions properly the it is the submitted to within jury, power trial court to set aside a verdict which is convinced is to the evidence and the contrary submit disputed to another But this the limit of the jury. Judges courts, cannot, without the power. violating law, fundamental substitute their opinions disputed of fact enter juries, and questions opinion such to verdicts judgments contrary juries.” in Wadsworth v. Union Pa This court tong ago, Ry. Co., 18 600, 515, Colo. 33 Pac. held that in such cific case as bar the the this whole record to bringing court for review, con including bill exceptions all taining testimony trial, offered on the clearly indicates that treat intention of was to parties the action of the trial court though court had dis - missed the action or a nonsuit on the granted ground had failed sufficient case for prove Hence the jury. court reviewed the cause accord In Ward v. Teller to the intention parties. Res. & Irr. Co., 47, 219, 60 Colo. 153 Pac. we followed the rule announced in the case, Wadsworth and again affirmed it in Warshauer Bank, Co. v. Rio Grande State Colo. 256 Pac. latter, 21. In the two actions were below, one brought in conversion and the other in re plevin. Verdicts for were returned in both ac trial, tions. motions for both Upon new verdicts were set aside without reasons given. election Upon stand cases as made they were dis missed. On error the two cases brought, were consid- together ered and we found evidence was conflicting ample but there was judgments returned; therefore, verdicts below were *6 reversed with instructions to overrule the motion for new trial and enter plaintiff in favor Following, the verdict in each then, case. this well es- though conflicting, tablished rule, substantial, if there is upon evidence in the case at .bar found which plaintiff, in favor of this evidence must be considered light plaintiff support most favorable to and support judg- of the verdict rather than in of the final ment below. judgment, urged
In of that it is that constitute an defendant’s actions did not assault. Plain duty engaged performance tiff place a was of his at right an where he had a to be. He was officer years’ experience. with several defendant testi While any fied that she not hear him utter before did words caught up yet looking car, he her she saw him with passed her as the barricade and she admits in her she something,” yelled plaintiff that, answer “Plaintiff and testified that he then his her raised hand told that park. cars were not allowed in the failed When defendant request, stepped at his he dispute board and there nois defendant that then addressed her and be there can no but that the words used were words intended to her through going park. from The defendant admits intentionally speeded up that she and swerved the car throwing for the board. him from the necessary injure was not that she intend enough wilfully him. To constitute an it assault ordinary set in motion a in its force which course causes injury. App. an v. Mandelbaum, This, Horne 13 Ill. 607. doing, it defendant admits and was an actionable assault ground believed,
unless she and had reasonable for be immediately necessary pre lief, such action was injury vent to herself or child. intentionally causing justification her
As sole says from the car, to be thrown indicate that he did not a uniform or otherwise wear duty; he an she knew was officer on while being yet opera park, she did not conducted fright- park she was traffic; closed to know was looking and that ened when she him at her when saw going he he her she and when took asked where was stepped of the car run- hold the window and baby ning board, she feared was after _was degenerate. (quoting she testified However, further abstract), thrown from the that after was off yelled ‘T car, the looking at' him. I said damn fool.’ I was ‘You trying him. When I out of the to see window I realized I had run over I mad at him. him, not thinking,” to tell him I was and that she wanted what stopped right thereupon by turn, made U drove back *7 happened he where sat. The fact all this at five public the o’clock in afternoon on a street with numer- together people vicinity, and in ous cars the immediate her remark man and immediate return the who with to says frightened had her her, she discredit con- tends to mistakenly thought degenerate she tention that awas kidnaper. or a Such conduct is with her not consistent excuse. good the faith bar
If believed purpose stop than to for some other ricade was erected and did not see “Street entrance to the street police suppose sign, plaintiff was a did not Closed” and feared and if in fact believed officer, and she attempting her child harm to her or and if him to be thinking under all the was excusable her mistake circumstances, using so justification for would constitute necessary escape to force as such reasonable plaintiff. if the words and conduct hand, admitted
On other following injury and of of defendant at the time plaintiff such or if the with belief exist- are inconsistent
275 sign of ence the barricade and “Street Closed” con- opera, plaintiff’s nection with the summer words and and actions and all the other circumstances of which de- knowledge justify any fendant had not be- would such guilty part, lief her then an she was of assault.
Whether the was in whether, mistake fact made and light if made, so was in the of it excusable all cir- leading surrounding up cumstances to commis- jury. act, sion be were matters to resolved Raymond, Courvoisier v. Colo. Pac. 284. urged plaintiff’s injuries next resulted
from his acts own and omissions and that was anticipate to bound plaintiff accidentally the natural his result of acts. Had running
fallen from the board attempted stop when he car, defendant’s there would have been merit to contention, this but when the driver moving of a slow car failed heed either the blockade signal sign plaintiff’s request and street stepped running repeat and he board to his re quest, anticipate he was not of bound to the natural deliberately result this act that the driver would speed up give and swerve the car and it “all had” it purpose throwing him off. having negligence
Counsel cite authorities to with do failing signal of a driver in for a and others concerning negligence guests riding where were plaintiff’s injury board. In the case at bar by negligence, not caused either himself or of de- admittedly fendant, but intentional act de- application fendant of force to her car throwing from the board. *8 plaintiff Moreover, was not on the board for riding the thereon, but was there the in at- tempted performance duty stop of his to the car. questions negligence contributory negligence are not involved. urged against
It is next that the verdict was the weight reading manifest evidence. A the careful evi- ample us that there was record convinces the entire on defend- verdict, based largely the dence to in dis- sufficiently The facts are testimony. ant’s own different con- men reach might that reasonable so pute to jury the function of therefore, it was clusions; not might agree trial court them-. Although resolve it not justify that would of the jury, verdict with might fact that we verdict, and the disturbing by reached conclusion from arrive at a different us in justify upholding alone would-not of the trial court. action erred in refus the court urged is finally instruction numbered requested to defendant’s give that, had no law as a matter of three, asserting of the car driven board to
right step if defendant’s consent and defendant without When defendant failed he was a trespasser. he did so failed to heed plain at the barricade and her car entrance, per its to prevent tiff’s attempts such under to take obligation duty of his formance the car. necessary as were steps reasonable to close department park Authority police challenged in such case not traffic to automobile traffic at delegation halt employment plaintiff’s say, from the record. We cannot fully appears that point unreasonable, his action was law, matter of as a refused. the instruction was properly and consequently record and law in the evi- ample no errors of We find Accordingly, the verdict. final to support dence below is reversed and cause the court judgment to the lower court rein- instructions remanded with and former of the jury verdict state the thereon. favor of Burke Justice dissent. Bakke and Justice
Chief Bakke, dissenting. Justice Chief Mr. trial court should be af-
I the judgment think justified his own acts because the plaintiff firmed *9 Counsel conduct of the defendant as a matter of law. plaintiff proposition “In the for states the as follows: analysis, then, final in this case was guilty plain- upon plaintiff of an unless the assault justified tiff of the de- his own acts conduct fendant.” testimony undisputed that there was noth- shows plaintiff’s appearance he an to indicate that was city regularly employed by
officer, and that was “keeping park, particularly undesirables out of the degenerates.” city sufficiently If the was concerned employ type I work, a man for that am not in favor penalizing driving through park woman, awith two-year-old fearing side, child at her for a man who acting peculiarly. for admits,
Counsel also inferen- least tially, that his client would not have a case “if the warning, without had dashed from the curb and ‘jumped’ himself thrown on defendant’s car or on the running way board in a careless manner and in such a fright.” just as to induce Í think the record here shows that. Plaintiff admits after defendant’s car and “jumped” that he board thereof. theOn as to whether was “careless” in so doing, upon negli- I think if this action had been based gence, the court would have held that he was contribu- torily negligent as a matter of law. As to inducement of fright, testimony the uncontradicted of a disinterested (Bemus) was, witness that after the affair was over, nervous, defendant still was and that she asked to be driven home. my conclusion that the above is sufficient to plaintiff, by analysis
indicate that counsel his own case, concedes that the trial court was warranted setting aside verdict.