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Kepley v. Un Son Kim11/5/1992
In this personal injury action, plaintiff, Jerry W. Kepley, appeals from the judgment entered upon a jury verdict in his favor against defendant, Un Son Kim. We affirm in part, reverse in part, and remand for a retrial on damages.
Plaintiff was injured in an automobile accident when the vehicle in which he was riding and which was driver by his wife collided with a vehicle driven by Kim. The plaintiff's vehicle was proceeding northbound through an intersection when it was struck by Kim's westbound vehicle.
Plaintiff filed this lawsuit alleging that Kim's negligence caused the accident and resulted in injuries to his back and neck. Although plaintiff's wife was originally a party plaintiff, by stipulation between the parties, her claims were dismissed with prejudice and she was designated as a nonparty in the action.
At trial, the jury returned a special verdict in favor of plaintiff allocating the percentages of negligence between Kim and plaintiff's wife as 60%-40%, respectively, and awarding $3000 in economic damages. The jury awarded nothing for damages for noneconomic losses or injuries or for physical impairment.
I.
Plaintiff's first contentions relate to the jury's finding that both Kim and plaintiff's wife were negligent. He contends that the trial court erred by failing to direct a verdict that Kim was 100% negligent and by instructing the jury on negligence per se. We reject this contention.
A.
At trial, a key determination was whether Kim entered the intersection on a yellow or a red light. Plaintiff argues that no reasonable person could have concluded from the evidence presented that the light was not red. Specifically, he points to Kim's own testimony that she approached the intersection on a yellow light, stopped for "around five seconds," then proceeded into the intersection. Based upon this statement, plaintiff's accident reconstructionist subsequently testified that it would have been impossible for the light to remain yellow for that duration and, thus, that the light must have been red when Kim entered the intersection. From this, plaintiff reasons that the trial court erred in denying his motion for directed verdict on the issue of Kim's liability. We disagree.
A motion for directed verdict can be granted only when the evidence, considered in the light most favorable to the party against whom the motion is directed, compels the Conclusion that reasonable persons could not disagree, and when no evidence has been presented that could sustain the jury verdict against the moving party. If there is conflicting evidence, the question is properly submitted to the trier of fact. United Bank v. One Center Joint Venture, 773 P.2d 637 (Colo. App. 1989).
Here, Kim also testified that the light was yellow as she approached the intersection and was "not red" when she entered. Further, the police officer who investigated the accident testified that Kim told him just after the collision that "the light was yellow, she went through and got hit." Finally, the accident reconstructionist admitted that if Kim stopped at the curb, rather than at the limit line, it was possible that she was in the intersection before the light changed to red.
Viewing this testimony in the light most favorable to Kim, we conclude that reasonable minds could differ on whether the light was yellow or red, and accordingly, this was an issue for the jury to decide.
Insofar as plaintiff argues that a reasonable person could not conclude that the negligence of anyone other than Kim contributed to the accident, we also disagree. The jury was instructed, without objection,
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