DeJulio v. Foster
| Decision Date | 04 March 1986 |
| Docket Number | No. 85-164,85-164 |
| Citation | 715 P.2d 182 |
| Parties | Rick DeJULIO, as Personal Representative of the Estate of Eric J. DeJulio, Appellant (Plaintiff), v. Joe W. FOSTER, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Jack R. Gage, Cheyenne, for appellant.
George E. Powers of Godfrey & Sundahl, Cheyenne, for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
Twelve-year old Eric DeJulio was killed when he was run over by a truck driven by appellee Joe Foster. As personal representative of Eric's estate, his father, appellant Rick DeJulio brought suit for damages under the wrongful death act, §§ 1-38-101 and 1-38-102, W.S.1977 (Cum.Supp.1985). From a judgment entered pursuant to a jury verdict in favor of appellee, appellant now appeals.
We affirm.
Appellant raises the following issues:
1. "The judgment is clearly erroneous and against the great weight of the evidence.
2. "Did the trial court commit reversible error when it refused to give a proffered proper lookout instruction, Wyoming Pattern Jury Instruction 7.03 3. "The trial court committed reversible error by refusing to give plaintiff's proposed jury instruction No. 10.
4. "The jury was guilty of misconduct by failure to follow the court's instructions.
5. "The trial court was given an opportunity to direct the verdict or correct the erroneous result by granting a new trial or a judgment NOV.
6. "Did the trial court err when it refused to allow evidence that the surviving parents of the decedent and only child, Eric DeJulio, are unable to have children?"
Appellee restates the issues as follows:
1. "Was the jury's verdict of no negligence supported by sufficient evidence or should this Court substitute its judgment for that of the trier of fact?
2. "Was the proper lookout instruction a correct statement of law, tailored appropriately to the particular facts and circumstances of this case?
3. "Was the Trial Court's decision to refuse Appellant's 'presumption of love of life' instruction a proper decision within the discretion of the Trial Court and did the refusal result in any prejudice to Appellant?
4. "Was there any evidence of jury misconduct?
5. "Did the Trial Court properly deny Appellant's motions for directed verdicts and motion for post trial relief in the form of a judgment N.O.V. and/or a new trial?
6. "Was the Trial Court's decision to exclude evidence of the surviving parents' infertility an appropriate exercise of the Trial Court's discretion and did this refusal result in any prejudice to Appellant?"
On August 16, 1982, Eric and appellee, Eric's great-uncle, were checking windmills and cattle on appellee's ranch in Laramie County, Wyoming. With them was Eric's second cousin, Kelly Tegeler. As they were driving back to the ranch house they spotted a coyote north of the road, and at the boys' urging appellee stopped the truck. The boys got out of the cab and climbed up onto the rear bumper to look for the coyote. It was not in sight, and therefore, appellee decided to back up the truck a short distance to get a better view. Appellee climbed back into the cab, but before backing up, turned and saw both boys standing on the rear bumper holding onto the tailgate. He then began backing up, and as he did so, he turned forward momentarily to look for oncoming traffic. Almost immediately, he felt a bump as if he had run over something. He stopped the truck and climbed out of the cab to see what it was. At that point, only Kelly was standing on the rear bumper. Appellee asked him where Eric was, and he said he did not know. Appellee then discovered Eric lying on the ground beneath the truck between the front and rear tires on the passenger side, obviously critically injured. Appellee picked him up, placed him in the cab and quickly drove the four miles to the nearest telephone. When the ambulance arrived Eric was dead.
On July 18, 1984, appellant filed a complaint in the District Court of Laramie County, Wyoming, alleging that appellee negligently drove his automobile, which negligence proximately caused the death of Eric DeJulio. The case was tried before a twelve-person jury; appellee was the only witness called by appellant to testify to the circumstances of Eric's death. At the appropriate times throughout the trial appellant moved for a directed verdict on the issue of Eric's negligence and on the issue of appellee's negligence. The motions were denied and the case submitted to the jury.
On May 9, 1985, the jury rendered a verdict for appellee. Judgment on the verdict was entered May 16, 1985; on May 22 appellant asked the court to set aside the verdict and judgment and grant a new trial, or in the alternative, modify the judgment. An order denying the motion was filed on June 26, 1985.
In the first issue appellant claims that the jury's verdict is clearly erroneous and against the great weight of the evidence. As appellant recognizes, when dealing with questions of fact, this court will not ordinarily substitute its judgment for that of the jury. Rissler McMurry Company v. Atlantic Richfield Company, Wyo., 559 P.2d 25 (1977). As a reviewing court, we assume the evidence of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give the evidence of the successful party every favorable inference which may reasonably be drawn from it. Landmark, Inc. v. Stockmen's Bank & Trust Company, Wyo., 680 P.2d 471 (1984). So long as there is sufficient evidence upon which the jury could rationally base its findings, such findings will not be adjusted in any way by this court. Thomasi v. Koch, Wyo., 660 P.2d 806 (1983). We will rarely accept the invitation to place ourselves in the position of a substitute jury.
Despite appellant's awareness of these standards of review, he argues that in the present case we have a duty to examine the record and reach our own independent conclusion from the evidence contained therein. He bases his claim on the rule that where evidence is uncontroverted, the findings in the trial court may be treated as legal conclusions, reversible by this court, and where such evidence admits of only one conclusion, a contrary one may not stand. Murphy v. Petrolane Wyoming Gas Service, Wyo., 468 P.2d 969 (1970). We do not find that rule to be controlling here. Appellant's assertion presumes that the evidence presented as to the circumstances of Eric's death was conclusive. We cannot agree. That appellee was the only witness to testify to the circumstances of Eric's death does not necessarily lead to the conclusion that his testimony was dispositive.
On the basis of his testimony appellant argued to the jury that appellee was negligent and that his negligence caused the death of Eric DeJulio. On the basis of the same testimony, appellee argued that he was not negligent and that his acts were not the cause of Eric's death. We are not willing to say that either position is correct as a matter of law. The evidence presented was susceptible of more than one conclusion. Either of two reasonable inferences could be drawn from it. Therefore, it was proper for the jury to determine which of the two, if either, was the more reasonable or probable. Bocek v. City of Sheridan, Wyo., 432 P.2d 893 (1967). Based on the evidence presented, the jury found that appellee was not negligent. We are not prepared to say that the finding was clearly erroneous or contrary to the great weight of the evidence. That we might have reached a different result is not grounds for overturning a jury verdict. Doenz v. Garber, Wyo., 665 P.2d 932 (1983).
Before trial appellant submitted the following proposed jury instruction:
The court modified appellant's proposed instruction as follows:
Appellant now contends that the court improperly modified the instruction, thereby committing reversible error. More specifically, appellant claims that the modification resulted in an incomplete statement of applicable Wyoming law. Again, we are not persuaded by appellant's claim. We have said that the function of jury instructions is to give the jury guidance regarding the law of the case. Hursh Agency, Inc. v. Wigwam Homes, Inc., Wyo., 664 P.2d 27 (1983). The trial court is not obligated to give an instruction offered by a party as long as the jury is adequately instructed on the law as it pertains to that case. Matter of MLM, Wyo., 682 P.2d 982 (1984). The trial court's ruling on an instruction will not constitute reversible error absent a showing of prejudice, and prejudice will not be said to result unless it is demonstrated that the instruction confused or misled the jury with respect to the proper principles of law. Cervelli v. Graves, Wyo., 661 P.2d 1032 (1983).
Applying these standards to the instructions given in this case, we find no prejudicial error requiring a reversal. The instruction, as modified, adequately informed the jury that anyone using a public highway must keep a proper lookout, an entirely adequate...
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