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2d 476
THIRINGER,
v.
BARLOW et al.
No. 4601.
William Barlow and Stella Barlow, husband and wife, instituted this action
against Elmer Thiringer, doing business as Wray Oil Company, to recover
damages arising out of a traffic accident which occurred in Wyoming. Primary
negligence on the part of the defendant was denied; contributory negligence on
the part of the plaintiffs was pleaded; and by cross complaint, damages for
injury to defendant's motor vehicle were sought. The jury returned a verdict for
plaintiffs on their cause of action and on the cross complaint; judgment was
entered accordingly; and defendant appealed.
The denial of defendant's motion for a directed verdict, the verdict of the jury
and the judgment of the court are challenged on the ground that the evidence,
considered as a whole, failed to establish negligence of the defendant and
affirmatively disclosed primary or contributory negligence on the part of
plaintiffs. These contentions are sufficiently related that they may be
considered together. U.S. Highways 85 and 87, hereinafter referred to as 85 and
87, respectively, run generally northward and southward through Colorado,
Complaint is made that the court refused to give to the jury certain requested
instructions. The court instructed the jury with commendable clarity and
correctness upon the material issues in the case. No exceptions were taken to
the instructions. And this court has held without deviation that it is not
Error is assigned upon the denial of the motion for a new trial. A motion for
new trial is addressed to the sound judicial discretion of the trial court and the
action taken thereon is not open to review on appeal unless it appears that there
was an abuse of such discretion. Metropolitan Life Insurance Co. v. Banion, 10
Cir., 106 F.2d 561, certiorari dismissed, 309 U.S. 691, 60 S.Ct. 468, 84 L.Ed.
1033; Viles v. Prudential Insurance Company of America, 10 Cir., 107 F.2d
696, certiorari denied, 308 U.S. 626, 60 S.Ct. 387, 84 L.Ed. 523; Dyess v. W.
W. Clyde & Co., 10 Cir., 132 F.2d 972; Kansas City Public Service Co. v.
Shephard, 10 Cir., 184 F.2d 945; United States v. Regents of New Mexico
School of Mines, 10 Cir., 185 F.2d 389. There was no abuse of discretion in the
denial of the motion in this case.