Lewis v. La Nier , 84 Colo. 376 ( 1928 )

Defendants in error suggest that the plaintiff in error did not make sufficiently specific objections to those parts of instructions numbered 3, 5 and 6 that we have held to be erroneous. The plaintiff tendered to the trial court a request for an instruction (Request No. 1). The court modified that request. As modified, it was given by the court as instruction No. 3, to which we called attention in our former opinion. The modification consisted in some change in phraseology, and particularly in the addition of the qualifying words, "as would warn a person approaching with due care and caution," which words made the instruction erroneous. The plaintiff objected to the modification of her requested instruction. This sufficiently directed the court's attention to the objectionable words, without repeating them, because those words constituted the only substantial modification of the plaintiff's requested instruction. The erroneous principle announced in instruction numbered 3 was repeated in instructions 5 and 6, though expressed in somewhat different form. Although the objections made to instructions numbered 5 and 6 were not so specific as otherwise might be required, as the plaintiff already had raised the legal question by objecting to the modification of her request No. 1, we hold that in the circumstances the point was saved for consideration upon writ of error.

Even if the plaintiff had failed to save that point, the case would have to be reversed for another reason. The plaintiff requested the court to instruct the jury that the negligence, if any, of the driver cannot be imputed to Lewis. The request stated the law applicable to the facts disclosed by the evidence. In view of the erroneous instructions practically requiring a verdict for the defendants if the jury should find that the driver was not "approaching with due care and caution," or was not "a careful driver," or was not "exercising ordinary and reasonable care," or if the jury should find that the automobile did not have "proper headlights"; and in view of the further fact that the defendants did not claim that Lewis personally was negligent, practically conceding that he was not, the court's refusal to give the requested instruction was error and was seriously prejudicial to the plaintiff. We adhere to the conclusion, stated in our former opinion, that the judgment should be reversed.

MR. CHIEF JUSTICE DENISON, MR. JUSTICE ADAMS and MR. JUSTICE CAMPBELL concur.