Martinez v. Union Pacific R. Co.

• Decision Date: 18 August 1983
• Docket Number: 81-2132,Nos. 81-2030,s. 81-2030
• Citation: 714 F.2d 1028
• Parties: Bobby M. MARTINEZ, Plaintiff-Appellant, Phillip L. Martin, Plaintiff-Appellant/Cross-Appellee v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Defendant-Third Party Plaintiff, Appellee/Cross-Appellant v. Edward Greg LITECKY, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1028

714 F.2d 1028

Bobby M. MARTINEZ, Plaintiff-Appellant, Phillip L. Martin, Plaintiff-Appellant/Cross-Appellee v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Defendant-Third Party Plaintiff, Appellee/Cross-Appellant v. Edward Greg LITECKY, Third Party Defendant-Appellee.

Nos. 81-2030, 81-2132.

United States Court of Appeals, Tenth Circuit.

Aug. 18, 1983.

Anthony F. Ross, Cheyenne, Wyo. (Vincent A. Ross, Cheyenne, Wyo., with him on the brief), for plaintiff-appellant/cross-appellee.

Henry F. Bailey, Jr., Cheyenne, Wyo., for defendant-third party plaintiff-appellee/cross-appellant.

Maxwell E. Osborn, Cheyenne, Wyo., for third party defendant-appellee.

Before HOLLOWAY, LOGAN and TIMBERS ^*, Circuit Judges.

TIMBERS, Circuit Judge.

Plaintiffs Martinez and Martin appeal from a judgment entered on a jury verdict in this diversity negligence action in the District of Wyoming, Ewing T. Kerr, Senior District Judge, dismissing their complaint against the Union Pacific Railroad Company (UP) in which they sought to recover damages for personal injuries alleged to have been sustained as the result of a grade crossing collision between plaintiff Martin's car and a UP train in Cheyenne, Wyoming, on November 26, 1977. UP appeals from those portions of the judgment which dismissed its third-party complaint against third-party defendant Litecky and which dismissed its counterclaim against plaintiff Martin.

The essential issue presented on these appeals is whether the district court erred in its submission of the case to the jury under the Wyoming Comparative Negligence Statute, Wyo.Stat. § 1-1-109 (1977). We hold that it did. We vacate the judgment and remand the case to the district court for retrial on all issues.

I.

On the evening of November 26, 1977, a passenger car occupied by Martinez, Martin and Litecky collided with a coal car which was part of a UP freight train that was engaged in a switching operation at a grade crossing at the intersection of Nationway and Lake Place in Cheyenne, Wyoming. Although Martin owned the car, there was a conflict in the evidence as to whether Martin or Litecky was driving it at the time of the accident. Plaintiffs claim that Martin was driving, that Martinez was a front seat passenger, and that Litecky was a back seat passenger, seated directly behind Martin. UP claims that Litecky was driving, that Martin was the front seat passenger, and that Martinez was the back seat passenger, seated directly behind Litecky. As a result of the accident, Martin and Martinez sustained injuries. Litecky, who fled the scene of the accident, escaped without injury.

On September 11, 1979, Martinez and Martin commenced the instant action against UP, alleging that UP failed to provide adequate warning signals at the crossing; that the crossing was maintained negligently and in an unsafe condition; that UP failed to give adequate or timely warning that a train was blocking the crossing; that there was inadequate lighting at the crossing; and that UP knew or should have known that the crossing was dangerous.

UP subsequently filed a third-party complaint against Litecky, alleging that he was the driver of the car and that his negligence was the proximate cause of the accident. UP sought indemnification or contribution from Litecky in the event that UP was held liable for plaintiffs' injuries. In an amended answer, UP asserted a counterclaim against Martin, seeking indemnification or contribution from him in the event the jury concluded that he was driving the car at the time of the accident and UP was held liable for plaintiffs' injuries.

At the trial, there was considerable testimony as to the identity of the driver. Witnesses testified that either Martin or Litecky emerged from the driver's seat immediately after the accident. The identity of the driver was a material fact, since under Wyoming law the liability of a driver ordinarily cannot be imputed to a passenger. For example, if the jury had determined that Litecky was the driver, and that he was contributorily negligent in his handling of the car, the jury nevertheless could have found that UP was 100% negligent with respect to Martinez and Martin and that they could recover whatever damages the jury determined they had sustained, leaving UP to seek indemnification or contribution from Litecky. ¹

After the close of the evidence and after the summations and charge, the court declined to submit to the jury a special interrogatory to determine the identity of the driver, despite the fact that plaintiffs and UP requested that such an interrogatory on this critical matter be submitted to the jury. Moreover, the court did not submit to the jury the issues raised by UP's third-party complaint against Litecky; indeed, the court dismissed the third-party complaint. Despite the testimony concerning Litecky's possible role as the driver of the car, therefore, the jury was precluded from finding Litecky to have been at fault. His name did not even appear on the negligence verdict form. ²

Martinez and Martin objected to the court's refusal to separate their cases for purposes of the jury's comparative negligence calculation. The court stated that it did not separate the two plaintiffs' cases because they had sued jointly and therefore they had but one joint cause of action.

Furthermore, over the objection of Martinez and Martin, the court refused to expand on the oblique reference in its charge to "joint venture" and the circumstances under which the negligence of a driver may be imputed to a passenger if a joint venture has been proven.

The jury returned a verdict--on the forms referred to above, note 2 supra --finding Martinez and Martin to have been jointly 85% at fault and UP to have been 15% at fault. The jury also assessed Martinez's damages at $4,000 and Martin's damages at $2,000.

Under the Wyoming Comparative Negligence Statute, the court dismissed with prejudice the complaint of Martinez and Martin against UP. The third-party complaint of UP against Litecky, as we have said above, also was dismissed with prejudice. Likewise, UP's counterclaim against Martin was dismissed with prejudice.

From the judgment entered June 30, 1981, on the jury verdict, the instant appeal and cross-appeal have been taken.

II.

Martinez and Martin claim that in its submission of the case to the jury the court erred in the following respects: (1) in not submitting a special interrogatory to the jury to determine the identity of the driver of the car; (2) in improperly referring to a joint venture when joint venture was not an issue during the trial; and (3) in submitting a verdict form to the jury which failed to call for separate determinations of the negligence of Martinez and Martin.

UP claims that the court erred in dismissing its third-party complaint against Litecky, thus foreclosing the jury from determining whether Litecky had been at fault. To this extent, UP's claim of error overlaps that of Martinez and Martin regarding the failure of the court to submit a special interrogatory to the jury.

We shall consider each of these claims of error seriatim.

(1) Failure To Submit Special Interrogatory

The Wyoming Comparative Negligence Statute provides that "[t]he court may, and when requested by any party shall: (i) [i]f a jury trial, direct the jury to find separate special verdicts...." Wyo.Stat. § 1-1-109 (emphasis added).

Assuming for present purposes that requests for special verdicts and interrogatories within the purview of Fed.R.Civ.P. 49 are to be treated the same as requested jury instructions, we have held that the district court in a diversity action must look to federal law, not state law, to determine the propriety of granting or denying a requested jury instruction. Wright v. Albuquerque Auto-Tr. Shop, 591 F.2d 585 (10th Cir.1979) ("Though state law determines the substance of a jury instruction in a diversity action, the granting or denial of tendered instructions is a matter of procedure and is therefore controlled by federal law."); Chavez v. Sears Roebuck & Co., 525 F.2d 827, 830 n. 2 (10th Cir.1975); Hopkins v. Metcalf, 435 F.2d 123, 124 (10th Cir.1971). Moreover, the Notes of the Advisory Committee on Rules accompanying Fed.R.Civ.P. 49(a) state that "[t]he Federal courts are not bound to follow state statutes authorizing or requiring the court to ask a jury to find a special verdict or to answer interrogatories."

It is clear that the district court here was under no obligation to require the jury to return special verdicts or to answer special interrogatories. The decision whether to do so was within the court's discretion. Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 531 (8th Cir.1981); 9 Wright & Miller, Federal Practice and Procedure § 2505, at 492-98 (1971).

Once the court decides to submit forms of special verdict and special interrogatories, it must cover all material factual issues. Simien v. S.S. Kresge Co., 566 F.2d 551, 555 (5th Cir.1978) (judge must cover all material issues raised by pleadings and evidence); National Bank of Commerce v. Royal Exchange Assurance of America, 455 F.2d 892, 898 (6th Cir.1972) (same); 5A Moore's Federal Practice p 49.03, at 49-18 (2d ed. 1982); 9 Wright & Miller, supra, § 2506, at 499. The question presented here is whether determination of the identity of the driver was such a material issue.

The district court instructed the jury that it should consider the dispute over the identity of the driver as part of its determination of the relative fault of the parties. The court therefore intended that the jury consider the issue of who drove the car as a factor in reaching its verdict. Under Wyoming law the identity of the driver in a comparative negligence action carries special implications.

A driver's negligence under Wyoming law cannot be imputed to a passenger unless the conduct of the passenger had a material bearing upon the driver's operation of the car at the...