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Hines v. Denver and Rio Grande Western Railroad Co.8/15/1991
n and that there would be the need for some understanding of that, and that the testimony of an expert could be helpful to the jury.
"I am going to deny the Motion in Limine, permit the witness to express an opinion on this, and recognize that it is going to be largely a matter of the weight the jury may wish to give or not give to the opinion of the expert."
We conclude that the trial court correctly evaluated the proffered expert opinions in light of the applicable law. Consequently, we find no abuse of discretion in the ruling.
III.
Defendants also contend that the trial court erred by refusing their tendered instruction regarding the duty of a locomotive engineer to apply the brakes when pedestrians are on the track. We disagree.
The jury was properly instructed that it, as the trier of fact, had the responsibility of weighing all evidence. Several instructions discussed the requirement of reasonable care in the operation of trains commensurate with the circumstances, including situations of emergency calling for quick action. We must presume that these instructions were understood by the jury, and thus, we conclude that defendants were not prejudiced by the court's refusal to instruct in the manner requested. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659 (1963); Arapahoe Basin, Inc. v. Fischer, 28 Colo. App. 580, 475 P.2d 631 (1970).
IV.
On cross-appeal, plaintiff contends the trial court erred in denying her C.R.C.P. 54(d) request for costs. We agree. See True Temper Corp. v. C.F.&I; Corp., 601 F.2d 495, 202 U.S.P.Q. (BNA) 412 (10th Cir. 1979).
The portion of the judgment relating to the wrongful death claim is affirmed. The portions of the judgment relating to the punitive damages claim and the disallowance of costs are reversed. The cause is remanded to the trial court for entry of judgment in favor of the railroad on the punitive damages claim and for such further proceedings as may be necessary on the issue of costs.
Disposition
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
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