Driscoll v. Erreguible

• Citation: 87 Nev. 97,482 P.2d 291
• Decision Date: 03 March 1971
• Docket Number: No. 6274,6274
• Parties: Edwin W. DRISCOLL, Appellant, v. Louis ERREGUIBLE, Doing Business as Louis' Basque Corner, Respondent.
• Court: Supreme Court of Nevada

Page 291

482 P.2d 291

87 Nev. 97

Edwin W. DRISCOLL, Appellant, v. Louis ERREGUIBLE, Doing Business as Louis' Basque Corner, Respondent.

No. 6274.

Supreme Court of Nevada.

March 3, 1971.

Rehearing Denied April 28, 1971.

Sidney W. Robinson, and Frank Cassas, Reno, for appellant.

Leslie A. Leggett, Reno, for respondent.

OPINION

GUNDERSON, Justice:

Appellant Driscoll seeks reversal of a judgment entered upon a jury verdict, denying him recovery for injuries allegedly sustained when he slipped and fell in premises where respondent Erreguible conducts his business. We reverse the judgment, and remand the cause for a new trial, having determined that the lower court erred when it gave the jury a certain supplemental instruction on respondent's defense of contributory negligence, and that, upon consideration of the record on appeal and of the manner the record was brought to us, this error should not be deemed harmless.

The case was submitted to the jury with instructions commonly used in this type of case. ¹ After the jury had thus been instructed, and during their deliberations, the jury sent a written inquiry to the judge: 'If the plaintiff contributed in any way to negligence, does that absolve the defendant of any liability whatsoever * * *?' Over objection by appellant's counsel, the court instructed the jury in part: 'Contributory negligence is negligence on the part of a person injured, cooperating in some degree with the negligence of another and acts in some degree, however slight, in proximately causing the injury in which the former thereafter complains.' (Emphasis added.) The jury returned to its deliberations and shortly thereafter rendered its verdict in favor of Erreguible.

In designating the record on appeal, as required by NRCP 75(a), appellant's counsel did not designate a trial transcript. ² However, subsequently they did file a Statement of Points, in attempted compliance with NRCP 75(d). ³ This Statement of Points recited that appellant sought determination of a single legal issue, to wit: 'Did the District Court improperly instruct the jury that contributory negligence on the part of the plaintiff was negligence 'however slight'.' A counterdesignation of the trial transcript having been made by respondent under NRCP 75(a), appellant's counsel directed a letter to the clerk of the lower court, with a copy to respondent's counsel, requesting that the clerk transmit to this court a partial record on appeal, and evincing a willingness to pay for the trial transcript if, but only if, this should be determined to be appellant's responsibility. ⁴

Six days later, respondent moved the lower court for an order dismissing the appeal, 'or in the alternative to require appellant to supply at his expense a copy of the reporter's transcript to be included in the record on appeal, as well as to furnish a copy thereof to counsel for respondent.' Before this motion could be heard, the appeal was docketed in this court on the original papers pursuant to NRCP 75(i); whereupon, respondent filed a Motion to Dismiss Appeal in this court, grounded on appellant's supposed obligation to serve 'a copy of the reporter's transcript of all the evidence and proceedings of the entire trial.' In reply to respondent's motion appellant contended, with some cogency and on the basis of respectable authority, that appellant should be required to include the additional portion of the record designated by respondent only if respondent could contend 'in good faith' that this was necessary, and that 'if the portions of the transcript designated by respondent are unnecessary, then the burden of obtaining those portions rests upon respondent.' The question being thus presented, we denied respondent's Motion to Dismiss Appeal; however, respondent has neither augmented the record on appeal by filing the trial transcript designated by him, nor attempted to establish its substance pursuant to NRCP 75(c). ⁵

1. The use of the phrase 'however slight' in instructing the jury with regard to contributory negligence is generally condemned. Annot. Propriety and Prejudicial Effect of Instructions Referring to the Degree or Percentage of Contributory Negligence Necessary to Bar Recovery, 87 A.L.R.2d 1391 (1963); W. Prosser, Law of Torts, § 64(3d ed. 1964). We agree that this type of instruction is improper.

Whether the phrase refers to the degree of causality, or the degree of negligence, its use is equally offensive. If the phrase refers to the degree of causality, as it seems to here, the jury may be misled to believing recovery is barred even where the negligence of the plaintiff contributed to his injuries only in a remote manner. This is not the law in Nevada. Cox v. L. A. & S. L. Railroad Company, 56 Nev. 472, 487 56 P.2d 149 (1936). 'The law recognizes a difference between proximate cause and remote cause; and in defining contributory negligence excludes the idea of a 'remote', 'indirect' or 'insignificant' causal connection between the negligence and the injury.' Huey v. Milligan, 242 Ind. 93, 175 N.E.2d 698, 704 (1961).

If the phrase refers to the degree of negligence, the jury may be led to believe that the slightest want of care will bar recovery. This, too, is not the law. Negligence is failure to exercise that degree of care in a given situation which a reasonable man under similar circumstances would exercise. Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 51, 369 P.2d 198 (1962). The standard of care is that of the ordinary prudent man, not that of extraordinarily prudent man. W. Prosser, supra, § 32. See also Iwrey v. Fowler, 367 Mich. 311, 116 N.W.2d 722 (1962), and Craig v. Benedictine Sisters Hospital Ass'n., 88 Minn. 535, 93 N.W. 669 (1903).

2. The respondent, relying on Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952), asserts that the giving of the offensive instruction must be held to be harmless error because we have before us neither a trial transcript nor any statement of the evidence prepared in accordance with NRCP 75(c). In most cases, we would undoubtedly agree; for usually, without a trial transcript or a statement of the evidence, the record will contain no substantial indicia that an error in instructing the jury has had a prejudicial effect. However, because of two distinguishing features in the instant case, considered together, we feel constrained to reach a different result.

First, even in Pfister, this court examined the partial record before it, to ascertain whether the possibility that the error was harmless could be disregarded as 'improbable or remote.' 69 Nev., at 311, 250 P.2d 239. There it could not be; here the deadlocked deliberations of the jury, their subsequent question with regard to whether 'any' negligence would bar recovery by Driscoll, together with their rapid verdict after the court's erroneous response to their query, indicate they felt Erreguible was causally negligent and Driscoll was minimally negligent. Cf. Clark v. State, 99 Cal.App.2d 616, 222 P.2d 300 (1950); and People v. Quicke, 61 Cal.2d 155, 37 Cal.Rptr. 617, 390 P.2d 393 (1964). Unquestionably, one who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968); Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); 7 J. Moore, Federal Practice, §§ 61.02, 61.03, 61.11 (2nd ed. 1970). However, in Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914), we held that where a party may reasonably contend a different result might have been reached, but for the error in question, this burden is met. In the instant case, by the record brought before us, appellant made a prima facie showing of prejudice.

Second, in Pfister, there was no question which litigant should suffer because the record did not allow a fully informed judgment. Here, we are necessarily concerned with this issue. Respondent apparently believes NRCP 75 invests the party who prevails in the lower court with an unqualified right to require an appellant to file a full trial transcript. We do not agree. While appellant had the burden of demonstrating prejudice, his counsel had another duty under NRCP 75(e), which provides in material part: 'All matter not essential to the decision of the questions presented by the appeal shall be omitted.' That rule further provides: 'For any infraction of this rule * * * the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties.' If disputes concerning the parties' respective rights and obligations were not to be subject to discretionary control by the court, NRCP 75(e) could be frustrated, the orderly processes of NRCP 75 would become a weapon of oppression; and it is for such reasons that NRCP 75(o) vests the district court with power to control disputes regarding the parties' obligations. ⁶

Appellant's counsel reasonably believed that the transcript was not essential, and proceeded in a reasonable manner to force a determination as to which party should pay for it. To the extent respondent's Motion to Dismiss Appeal raised the issue, our Order denying that motion absolved appellant of any immediate obligation to pay for the transcript. This threw upon respondent the necessity of deciding whether the partial record designated by appellant made a prima facie showing of prejudice, and, if so, whether he wished to file additional portions of the record himself in an attempt to meet that prima facie showing. Apparently, respondent's counsel had greater faith in the theoretical necessity of a trial transcript to demonstrate prejudice, than he had in the transcript itself.

The appellant having already been aggrieved by an erroneous jury instruction, we are loathe to deny him a proper trial by extending the rule...