Monahan v. Flannery
| Decision Date | 27 February 1985 |
| Docket Number | No. 83-2576,83-2576 |
| Citation | 755 F.2d 678 |
| Parties | Neil MONAHAN and Delores Monahan, Administrators of the Estate of Catherine Monahan, Deceased; and Neil Monahan and Delores Monahan, parents of Catherine Monahan, Deceased, Appellants, v. Hilda FLANNERY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert Kohorst, Harlan, Iowa, for appellants.
C.J. Gatz, Norfolk, Neb., for appellee.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Catherine Monahan, a road construction worker, was struck and killed by a car driven by Hilda Flannery. Ms. Monahan's parents brought a wrongful death action and now appeal from a judgment entered on a jury verdict in favor of Mrs. Flannery. They argue that the district court instructed the jury improperly, both as to Monahan's duty under the statutory rules of the road and as to Flannery's duty to sound her horn upon approaching Monahan. We reverse and remand for a new trial.
Catherine Monahan, age 18, had recently begun working for the Monarch Construction Company. At about 7:30 p.m. on July 28, 1980, she was riding on the tailgate of a Monarch pickup truck, finishing her workday by "flipping" forty-five mile-per-hour speed signs back to regular speed limits. Marlene Buthmann, the driver of the truck, testified that she had pulled the truck completely off the highway by a set of signs and had completely stopped it when Monahan came to the driver's window to ask for a hard hat to stand on while flipping the sign on the other side of the road. Buthmann, who did not hear Flannery's car coming and did not hear the honk of a horn, testified that Monahan was standing beside the pickup with one foot on the dirt of the shoulder and one on the pavement and was taking the hat from her when she was struck by the car.
Mrs. Flannery, who was taking five children to a swimming party, testified that when she saw the pickup parked off the road, she let up on the accelerator and moved closer to the center of the road. She further testified that as she approached the pickup, Monahan stepped away from the pickup and took three steps into the path of her vehicle before she could honk her horn or apply her brakes. Monahan was struck by the right front of Flannery's car and died instantly as a result of her injuries.
The Monahans brought suit, alleging that Flannery's negligence caused the wrongful death of their daughter. In its instructions to the jury the district court outlined the allegations of Flannery's negligence and instructed as to certain duties allocated to her. It gave a specific instruction concerning highway workers, concluding it by stating that highway workers must at all times exercise ordinary care for their safety. 1 The district court then gave detailed instructions as to contributory negligence. 2
At the conclusion of the instructions, the Monahans objected generally to the court's failure to give requested instructions and specifically to the ordinary care and contributory negligence instructions, on the ground that they obviated the special protection given highway workers under Nebraska law. The Monahans appeal, urging error in the instructions on the grounds they objected to at trial, as well as other error.
We deal first with the Monahans' argument that the district court's instructions were in conflict with Neb.Rev.Stat. Sec. 39-606 (1978), which provides:
Unless specifically made applicable, the provisions of sections 39-601 to 39-6,122, except those provisions relative to careless driving and to reckless driving, shall not apply to:
(1) Persons * * * while actually engaged in work upon the surface of a highway but shall apply to such persons * * * when traveling to or from such work.
The Monahans argue that this statute relieves highway workers of such statutory requirements otherwise imposed on pedestrians as the duty to yield the right-of-way to vehicles on the roadway when crossing other than at crosswalks, 3 the restrictions placed on walking along or upon roadways, 4 the prohibition against suddenly leaving the curb or other place of safety and walking or running into the path of a vehicle, 5 and the duty to keep a proper lookout. The Monahans contend that while the court in its instructions did refer to the special status of the highway worker, nonetheless it elsewhere essentially instructed the jury to disregard that status, first, by stating that a highway worker must at all times exercise ordinary care for his safety, and, second, by stating that the jury could find Monahan contributorily negligent if she failed to keep a proper lookout, failed to yield the right-of-way to Flannery, or proceeded into the path of Flannery's vehicle. 6
We have enunciated a number of principles that guide us in reviewing jury instructions in a diversity case. A district judge has broad discretion in the choice of the form and language of his instructions; "as long as the entire charge fairly and adequately contains the law applicable to the case, the judgment will not be disturbed on appeal." Board of Water Works Trustees v. Alvord, Burdick & Howson, 706 F.2d 820, 823 (8th Cir.1983), quoted in Lackawanna Leather Co. v. Martin & Stewart, Ltd., 730 F.2d 1197, 1201 (8th Cir.1984). Where the law governing the case is expressed in a statute, the court in its charge should use statutory language; but the standard remains whether the instructions as a whole substantially apprise the jury of the meaning of the statute and fairly and fully present the issues to the jury. La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 803 (8th Cir.1963). In reviewing instructions to determine if they correctly set forth the applicable law, we must read and consider the charge as a whole. Bern v. Evans, 349 F.2d 282, 290 (8th Cir.1965).
As we apply these principles to the case before us, we first observe that section 39-606 plainly and unequivocally excepts persons "engaged in work upon the surface of a highway" from the particular provisions of the several statutes that comprise the rules of the road. Despite this statutory exception, the district court proceeded to instruct that Monahan could be found negligent if she did not yield the right-of-way or if she crossed in front of the path of the vehicle involved in the accident. These prohibitions are contained in the statutory rules of the road, 7 which are expressly made inapplicable to persons working on a highway. The instructions taken in their entirety are thus contrary to the provisions of section 39-606. The Monahans were entitled to have an instruction that the right-of-way and crossing duties did not apply to highway workers. Instead, the instructions specifically placed these duties on Ms. Monahan.
The third basis for Monahan's contributory negligence upon which the jury was instructed was failure to keep a lookout. The duty of a pedestrian to keep a lookout does not appear in the statutory rules of the road. The section of the model jury instructions to which the Monahans refer us, N.J.I. 7.03, deals only with the duty of the driver of a motor vehicle to keep a proper lookout. Nebraska case law, however, has held that "a pedestrian who crosses a street between intersections is required to keep a constant lookout for his or her own safety in all directions of anticipated danger." Gerhardt v. McChesney, 210 Neb. 351, 314 N.W.2d 258, 262 (1982); see Hrabik v. Gottsch, 198 Neb. 86, 251 N.W.2d 672 (1977); Merritt v. Reed, 186 Neb. 561, 185 N.W.2d 261 (1971). As an accident in this situation would fall under the statutory rules of the road, the requirement to keep a lookout may well be a judicial gloss on these statutory rules, and, hence, also excepted by section 39-606. We need not reach this question, however, since the district court told the jury it could find Monahan contributorily negligent on one or more of the three bases. Thus, the instruction as given would authorize a finding in favor of Flannery if it were found that Monahan had violated one of the two statutory prohibitions specifically inapplicable to highway workers.
Flannery's attempts to avoid the impact of section 39-606 need not detain us long. Flannery first argues that the statute must be construed narrowly and, thus, that Monahan's work of "flipping" signs was not work on the surface of the road. Under Flannery's interpretation of the statute, only persons actually in physical contact with the surface of a road while working (for example, persons holding shovels or jackhammers actually in contact with the surface or those operating heavy machinery actually in contact) would be protected. "Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible." American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982). To construe the statute as Flannery suggests would produce just such an unreasonable result. Monahan's job of flipping signs as the workday ended was an integral part of and a duty essential to the work on the highway. We have no difficulty in concluding that as a matter of law Monahan was actually engaged in work upon the surface of the highway at the time she was struck by the Flannery vehicle.
Flannery next argues, citing Beebe v. Sorensen Sand & Gravel Co., 209 Neb. 559, 308 N.W.2d 829 (1981), that since the statute excludes persons "traveling to or from * * * work" Monahan is not protected since she "was travelling between positions where her task would be performed." Beebe dealt with an accident in which an operator was moving a snowplow against traffic to a street several blocks away he had missed plowing. The Supreme Court of Nebraska held that under those particular circumstances whether the operator was actually engaged in work on the surface of a highway was a question of fact. The facts of Beebe are so dissimilar to those...
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