Meyer v. Estate of Swain, 18280

• Court: Supreme Court of Nevada
• Citation: 104 Nev. 595,763 P.2d 337
• Docket Number: No. 18280,18280
• Parties: Bob MEYER and the Estate of Craig Curtis, Appellants, v. ESTATE OF Frances SWAIN, Carl Swain, individually and as heir at law of Frances Swain, Kathleen D. Mers, as Guardian ad Litem for Carl J. Swain, and Catherine I. Swain, minors and heirs at law of Frances Swain, Respondents.
• Decision Date: 26 October 1988

Page 337

763 P.2d 337 104 Nev. 595 Bob MEYER and the Estate of Craig Curtis, Appellants,
v.
ESTATE OF Frances SWAIN, Carl Swain, individually and as
heir at law of Frances Swain, Kathleen D. Mers, as Guardian
ad Litem for Carl J. Swain, and Catherine I. Swain, minors
and heirs at law of Frances Swain, Respondents. No. 18280. Supreme Court of Nevada. Oct. 26, 1988.

Page 338

Perry, Hebert & Spann, and John A. Furlong, Reno, for appellant Bob meyer.

Thorndal, Backus & Maupin, and Stephen C. Balkenbush, Reno, for appellant Estate of Craig Curtis.

Robison, Belaustegui and Robb, Reno, for respondents.

[104 Nev. 596] OPINION

PER CURIAM:

Appellant Craig Curtis and respondent Frances Swain died as a result of injuries sustained in a motorcycle-pedestrian collision. A jury determined that Curtis was entirely responsible for the collision and that Swain was fault free. Because the trial court erred in refusing to instruct the jury on Swain's statutory duty as a pedestrian to remain off the highway while intoxicated while at the same time giving a comparable instruction on the unlawfulness of Curtis's driving while under the influence and because the evidence clearly shows that Swain's negligence, in some degree, contributed to the collision that caused her death, we reverse the judgment of the trial court.

The focal error, the central unfairness in this case, lies in the trial court's giving of an instruction that Curtis's intoxication rendered him negligent as a matter of law, while refusing to give a corresponding instruction relating to Swain's intoxication. There was evidence at the trial that both Curtis and Swain had been drinking prior to the fatal collision. Swain requested and was granted an instruction on the unlawfulness of Curtis's use of alcohol. That instruction, given at the request of the Swains, reads:

There was in force at the time of the occurrence in question, a Nevada statute which makes it unlawful for any person who has a 0.10% or more by weight of alcohol in his blood to drive a motorcycle on a public highway. The statute further provides that it is unlawful for any person who is an habitual user of or under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance to drive a motorcycle on a public highway.

A comparable instruction based on NRS 484.379 was requested by Curtis and Meyer, one which read as follows:

There was in force at the time of the occurrence in question laws which read in relevant part as follows:

[104 Nev. 597] It is unlawful for any pedestrian who is under the influence of intoxicating liquors to be within the traveled portion of any highway.

This instruction was refused.

It is well established that a party is entitled to have the jury instructed on all of his

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theories that are supported by the evidence. See Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). In reviewing the propriety of the trial court's refusing to give the instruction on pedestrian intoxication, the relevant inquiry is simply whether there was evidence adduced at trial to support the theory underlying the instruction. Rather clearly, such evidence was adduced at the trial.

We note initially that for the purposes of criminal prosecutions for driving under the influence of intoxicating liquor, NRS 484.381(2)(b) provides that while a defendant who has a blood-alcohol content of between .05 and .10 percent is not presumed to be under the influence of intoxicating liquor, nevertheless, "this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant." NRS 484.381(2)(b). The evidence in this case shows that Frances Swain's blood-alcohol content was between .05 and .10 percent. There was testimony by the investigating police officer that Swain's blood-alcohol level at the time the accident occurred was possibly as high as .068. Swain's measured blood-alcohol level of .05, taken over an hour after the accident, would indicate that her blood-alcohol must have exceeded...