Cervelli v. Graves

• Decision Date: 06 April 1983
• Docket Number: No. 5801,5801
• Citation: Cervelli v. Graves, 661 P.2d 1032 (Wyo. 1983)
• Parties: Larry B. CERVELLI, Appellant (Plaintiff), v. Kenneth H. GRAVES and DeBernardi Brothers, Inc., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1032

661 P.2d 1032

Larry B. CERVELLI, Appellant (Plaintiff), v. Kenneth H. GRAVES and DeBernardi Brothers, Inc., Appellees (Defendants).

No. 5801.

Supreme Court of Wyoming.

April 6, 1983.

Jack B. Speight (argued) and Blair J. Trautwein of Hathaway, Speight & Kunz, Cheyenne, signed the brief on behalf of appellant.

David D. Uchner (argued) and Mark A. Bishop of Lathrop & Uchner, Cheyenne, signed the brief on behalf of appellees.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

RAPER, Justice.

This case arose when Larry B. Cervelli (appellant) filed a personal injury suit for injuries he sustained when a pickup truck driven by him collided with a cement truck owned by DeBernardi Brothers, Inc. (appellee). The cement truck was driven by DeBernardi's employee, Kenneth H. Graves (appellee) while acting in the course of his employment. After trial, a jury found no negligence on the part of appellees. Appellant argues the jury was incorrectly instructed and, as a result, found as it did thereby prejudicing him. He raises the following issues on appeal:

"A. Did the court err in instructing the jury that it was not to consider a person's skills in determining whether that person is negligent?

"B. Did the court err in not instructing that defendant, Kenneth H. Graves, is held to a more specific standard of care since he was a professional truck driver and plaintiff, Larry B. Cervelli, was not?

"C. Did the court err in instructing the jury that there is no liability for injuries from dangers that are obvious and reasonably apparent in the context of this matter."

We will reverse and remand.

Around 7:30 a.m., February 22, 1980, a collision occurred approximately nine miles west of Rock Springs, Wyoming in the westbound lane of Interstate Highway 80 involving a pickup driven by appellant and appellee's cement truck. At the time of the accident, the road was icy and very slick; witnesses described it as covered with "black ice." Just prior to the accident appellant had difficulty controlling his vehicle and began to "fishtail" on the ice. He eventually lost control of his vehicle and started to slide. Appellee Graves, who had been approaching appellant from behind at a speed of 35-40 m.p.h., attempted to pass appellant's swerving vehicle first on the left side, then the right. He too, thereafter, lost control of his cement truck and the two vehicles collided. It was from that accident that appellant brought suit to recover damages for the numerous injuries he suffered.

By his own admission, appellee Graves at the time of the accident was an experienced, professional truck driver with over ten years of truck driving experience. He possessed a class "A" driver's license which entitled him to drive most types of vehicles including heavy trucks. He had attended the Wyoming Highway Patrol's defensive driver course and had kept up-to-date with various driving safety literature. He was the senior driver employed by appellee DeBernardi Brothers, Inc.

The suit was tried to a jury on the issues of appellee's negligence as well as the degree, if any, of appellant's own negligence. After a four-day trial, the jury was instructed and received the case for their consideration. They found no negligence on the part of appellees. Judgment was entered on the jury verdict and appellant moved for a new trial claiming the jury was improperly instructed. The district court took no action on the motion; it was deemed denied in sixty days. Rule 59, W.R.C.P. This appeal followed.

Appellant calls our attention to and alleges as error the district court's jury instructions 5 and 10. Instruction 5 instructed the jury that:

"Negligence is the lack of ordinary care. It is the failure of a person to do something a reasonable, careful person would do, or the act of a person in doing something a reasonable, careful person would not do, under circumstances the same or similar to those shown by the evidence. The law does not say how a reasonable, careful person would act under those circumstances, as that is for the Jury to decide.

"A reasonable, careful person, whose conduct is set up as a standard, is not the extraordinarily cautious person, nor the exceptionally skillful one, but rather a person of reasonable and ordinary prudence.

"Negligence is actionable only when it appears that it was a direct cause of any injury and damages complained of. A direct cause is a cause which directly brings about the injury either immediately or through happenings which follow one after another.

"There may be more than one direct cause in that an accident may result from one or more separate and distinct acts by different persons."

Instruction 10 instructed the jury that:

"Cervelli [appellant] and Graves [appellee] had a duty to use ordinary care for their own safety and protection, and to that end to observe the dangers, if any, which were open and obvious to them, or as well known to one as to the other, if they were using reasonable care and caution for their own safety and protection, and to guard against injury to themselves so far as by such reasonable care they could protect themselves. They had a duty to use for their own safety all such care and caution as an ordinarily prudent person ordinarily uses under like circumstances.

"Ordinary care demands that such vigilance be increased where special circumstances exist. The degree of diligence required of the parties in order to measure up to the standard of ordinary care which the law requires, varies with the circumstances and the conditions which might normally be brought about by the weather, and the opportunity to observe things. There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to any other parties."

In chambers, appellant's counsel made timely and specific objections to both instructions 5 and 10 and proposed instructions consistent with his objection to instruction 5. ¹ Appellant's counsel stated distinctly that he objected to the second paragraph of instruction 5 because he argued appellee Graves was a professional truck driver and should be "held to a higher duty of care." In the alternative, counsel argued if appellee Graves is not held to a higher standard by virtue of his occupation, the jury is at least allowed to take cognizance of any knowledge and skill he possesses; therefore, the instruction's second paragraph should be deleted. Instruction 10, in its entirety, was objected to as incorrectly applying the doctrine of known and obvious danger, as it pertains to slip and fall cases, to this highway collision case; appellant argued that it had no application to the case at bar. ² Because appellant's objections were timely and specific, the trial judge was sufficiently aware of the nature and grounds of the objection to afford him the opportunity, upon second thought, to change them if he so chose. For that reason, the objections were sufficient to preserve the issue and permit our review of the questioned instructions. Rule 51, W.R.C.P.; Danculovich v. Brown, Wyo., 593 P.2d 187 (1979); Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986 (1974).

In reviewing alleged errors in jury instructions, a finding of error is not alone sufficient to reverse; prejudicial error must be found. Walton v. Texasgulf, Inc., Wyo., 634 P.2d 908 (1981). Prejudicial error is never presumed; it must be established by the parties. Pure Gas and Chemical Company v. Cook, supra. If it is established that an instruction or instructions had a tendency to confuse or mislead the jury with respect to the applicable principles of law, reversal is proper. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2558, p. 668 (1971); see also, Marken v. Empire Drilling Company, 75 Wyo. 121, 293 P.2d 406 (1956). We shall proceed with the foregoing in mind.

I

We begin our discussion of the issues by reviewing instruction 5 given by the trial court. Appellant argues that the second paragraph of that instruction is an incorrect statement of the law. We agree.

The complained of portion of that instruction states:

"A reasonable, careful person, whose conduct is set up as a standard, is not the extraordinarily cautious person, nor the exceptionally skillful one, but rather a person of reasonable and ordinary prudence."

That language is an apparent attempt to enlarge upon the reasonable man standard. In that attempt to explain the reasonable man concept, however, the instruction goes too far. It contradicts the correct statement of the law contained in the first paragraph of the instruction. Simply put, the first paragraph of the instruction correctly states that negligence is the failure to exercise ordinary care where ordinary care is that degree of care which a reasonable person is expected to exercise under the same or similar circumstances. Vassos v. Roussalis, Wyo., 625 P.2d 768 (1981); Nehring v. Russell, Wyo., 582 P.2d 67 (1978); Fegler v. Brodie, Wyo., 574 P.2d 751 (1978). The trial court's instruction first allows the jury to consider the parties' acts as compared to how the reasonable person would act in similar circumstances and then limits the circumstances the jury can consider by taking out of their purview the circumstances of exceptional skill or knowledge which are a part of the totality of circumstances.

Our view that negligence should be determined in view of the circumstances is in accord with the general view. The Restatement, Torts 2d § 283 (1965) defines the standard of conduct in negligence actions in terms of the reasonable man under like circumstances. Professor Prosser, discussing the reasonable man, likewise said that "negligence is a failure to do what the reasonable man would do 'under the same or similar circumstances.' " He contended a jury must be instructed to take the circumstances into account. Prosser, Law of Torts § 32, p. 151 (4th ed. 1971). Prosser also went on to note...