GENERAL30353

• Permit No: C1981022
• IBM Index Class Name: General Documents
• Doc Date: 8/21/1991
• From: DUFFORD WALDECK MILBURN & KROHN
• To: MRD
• Permit Index Doc Type: PUBLIC CORRESPONDENCE
• Media Type: D
• Archive: No

128 Colo. 566 PACIFIC REPORTER, 2d SERIES
jury on two claims for relief, one of which
is clearly inappropriate.
4. Appeal and Error aa852
Where plaintiffs, in action arising out
of defendant's operation of an egg ranch on
adjoining property, established a prima fa-
cie case of nuisance as well as trespass, the
damages award, supportable under either
theory, would not be disturbed.
5. Nuisance ~5D(7)
Trespass X57
Where the trial wort, in damages ac-
tion for trespass and nuisance arising out of
defendant's operation of an egg ranch on
adjoining property, exercised its discretion
in ordering a remittitur on the element of
loss of usage and enjoyment of plaintiffs'
property, it could not be said that the judg-
ment as entered, including wmpensatary
damages of 5&5,748, was grossly and mani-
festly excessive.
6. Nuisance X53
Trespass X67
In damages action for trespass and nui-
sance arising out of defendant's operation
of an egg ranch on adjoining property,
damages for annoyance and diswmfort, un-
like those sustained in the loss of use and
enjoyment of plaintiffs' property, were not
suffered on a weekly, monthly or seasonal
basis, but were absolute, and it was within
the jury's discretion to determine when and
how extensively plaintiffs suffered.
7. Nesr Trial x=65
In overseeing the functions of the jury,
it is not the place of the trial judge to sit as
a thirteenth juror.
S. New' Trial X72(6)
Although the wort may disagree with
the verdict, the granting of a motion for
new trial is improper where the evidence
palpably supports the verdict.
9. New Trial 4=71
In the face of wntlicting evidence, the
trial court may not substitute its view for
that of the jury.
10. Nuisance ~Sd
Trespaee a~68(1)
In damages action for trespass and nui-
sance arising out of defendant's operation
of an egg ranch on adjoining property,
there was evidence to support an instruc-
tion on exemplary damages, and the trial
court's action in not setting aside the 5.9(10,-
000 award, despite its disagreement with
the verdict, was therefore consistent with
established principles.
11. Appeal and Error x=933(1)
Court of Appeals was not warranted in
assuming the trial court ignored the ques-
tion of the excessiveness of exemplary dam-
ages simply bemuse the trial court noted its
disagreement with the jury but did not
reduce the award.
12 ADP and Error X900
Trial court is presumed to have wn-
sidered all properly raised objections.
13. Damages X94
While exemplary damages must bear a
reasonable relationship to compensatory
damages, no fixed mathematical formula
exists to determine reasonableness.
14. Damages 4=44
Relationship between exemplary and
wmpensatory damages is but one test to be
applied in assessing the excessiveness of the
award of exemplary damages; of equal im-
portance, the verdict must be sufficient to
punish the defendant and effectively deter
others in similar circumstances.
I5. Nuisance 4=53
Trespass x=67
In action for trespass and nuisance
arising out of defendant's operation of an
egg ranch on adjoining property, there was
sufficient evidence of defendant's wanWn
and reckless disregard for plaintiffs' rights
to justify submission of the question of
exemplary damages W the jury.
16. Damages 4=181
In respect to the issue of exemplary
damages, defendant's financial status was a
proper factor for jury wnsidention.