THESE parties appeared in reverse order in the trial court and are hereinafter referred to as there.
Plaintiff, a child appearing by his father as next friend, sued for damages sustained in an automobile collision at a street intersection in Denver, June 10, 1932, *Page 3 at which time he was less than two years old. On a verdict in his favor for $6,095.95 judgment was entered, to review which defendant prosecutes this writ and asks that it be made a supersedeas. The alleged errors are thus grouped and argued: (1) The court's ruling that the state statute and not the city ordinance governed the right of way on street intersections in Denver; (2) the overruling of defendant's motion for a mistrial; (3) the admission of certain medical testimony; (4) the giving and refusing of certain instructions.
[1] 1. Defendant pleaded the city ordinance giving the right of way at street intersections to the driver on the right. The court sustained a motion to strike on the theory that the state statute giving the right of way to the driver who first entered the intersection was controlling. In Denver v. Henry, 95 Colo. 582, 38 P.2d 895, this day decided, we have held, in a situation identical with this, that the right of way at a Denver street intersection is controlled by the ordinance, not the statute. Hence the ruling here was erroneous.
2. Since it cannot be presumed that the occasion which produced this alleged error will arise on a new trial it requires no present consideration.
[2] 3. A physician (witness for plaintiff) being asked which of plaintiff's injuries were "permanent in nature" answered, "The injury to his brain, I feel, is of considerable permanency; we have possibilities of developing various other disorders, particularly epilepsy." Motion to strike this answer was overruled. In support of that motion 17 C. J. 753 and 764, and Cookman v.Caldwell, 64 Colo. 206, 170 P. 952 are cited. The motion was to strike the entire answer, the first part of which was clearly proper. As to the second the witness had already given the same testimony without objection. Hence the assignment is without merit.
[3] 4. Defendant alleged that the accident was caused by the negligence of the driver of the car in which plaintiff was riding. His requested instructions 1, *Page 4 11 and 12 presented this defense of proximate cause, but omitted the word "sole." For that reason they were properly refused. Small v. Clark, 83 Colo. 211,263 P. 933.
Defendant's requested instruction No. 13, which was refused, reads in part: "Unless you further find from a preponderance of the evidence that the throwing of plaintiff out of his automobile and into the street could have been reasonably foreseen or anticipated by the defendant as the result of said negligence, if any, your verdict must be against plaintiff and in favor of defendant." In support of this instruction counsel cite only Colo. M. I. Co.v. Giacomini, 55 Colo. 540, 568, 136 P. 1039. That authority merely holds that some injury, occurring in some manner, to some person, should be reasonably anticipated. It is against the instruction.
[4] Defendant's requested instruction No. 18 was for special findings. Such an instruction is discretionary, and no abuse appearing, its refusal was not error. DenverElectric Co. v. Simpson, 21 Colo. 371, 41 P. 499.
Error is also assigned to the giving of the court's instructions 5, 6 and 8. No authority is cited in support of these assignments and we perceive no error in the instructions.
For the court's error in striking the plea of the ordinance the judgment is reversed.
MR. CHIEF JUSTICE ADAMS, MR. JUSTICE HILLIARD and MR. JUSTICE HOLLAND concur.
MR. JUSTICE BUTLER, MR. JUSTICE CAMPBELL and MR. JUSTICE BOUCK dissent.