Otterbeck v. Lamb

• Decision Date: 14 July 1969
• Docket Number: No. 5679,5679
• Citation: 456 P.2d 855,85 Nev. 456
• Parties: Patricia A. OTTERBECK, Appellant, v. Nancy Ann Baker LAMB, Respondent.
• Court: Nevada Supreme Court

Page 855

456 P.2d 855

85 Nev. 456

Patricia A. OTTERBECK, Appellant, v. Nancy Ann Baker LAMB, Respondent.

No. 5679.

Supreme Court of Nevada.

July 14, 1969.

Vargas, Bartlett & Dixon and Steven T. Walther, Reno, for appellant.

Richard P. Wait, Reno, for respondent.

OPINION

COLLINS, Chief Justice.

This appeal is from a final judgment and order denying appellant a new trial in a personal injury action arising out of a two-car collision. The jury found for respondent (defendant below), driver of one vehicle, and against appellant (plaintiff below), a passenger in the other vehicle. We think prejudicial error was committed in instructing the jury, reverse the order and remand the action for a new trial.

Appellant, Mrs. Dickinson, and their husbands were vacationing at Elk Point, Lake Tahoe, Nevada, and had for several years past. All four were deaf mutes. Mrs. Dickinson was a licensed California driver and qualified as a lawful operator in Nevada. Appellant had ridden with her as a passenger on many previous occasions, including several crossings of U.S. 50 on Elk Point Road during 1965 and in previous years.

At midday on July 14, 1965, Mrs. Dickinson and appellant as her passenger were travelling from Elk Point to the Round Hill Shopping Center cast east on Elk Point Road, which crossed U.S. Highway 50. Elk Point Road is a two-lane roadway running east and west. U.S. 50 is a four-lane arterial highway running north and south. The highway is divided by double yellow lines, not by islands. The intersection is controlled by a stop sign on Elk Point Road. The day was warm and clear. The pavement was dry.

They stopped at the intersection, both looked left, or north, along U.S. 50 and then right, or south, where they could see considerable distance to the crest of a hill. They both observed cars approaching the intersection from the south. They waited, and they both looked in each direction a second time and then proceeded across the four lanes of U.S. 50 at about 10 to 12 miles per hour. The Dickinson Pontiac was struck by the Lamb Lincoln on the right side where appellant was sitting. Neither Mrs. Dickinson nor appellant observed the Lamb automobile until it struck them. After the Dickinson auto started across the intersection, appellant maintained no lookout but directed her gaze to the accelerator of the car. Appellant was knocked unconscious, hospitalized for six weeks, suffered from a cerebral concussion, a skull fracture, a fracture of the left pelvis, several fractured ribs, and a contusion of the right lung.

Respondent, Mrs. Lamb, had been visiting her mother in Placerville, California. She left for Reno about 9 a.m., driving a 1965 Lincoln automobile for the first time, stopped for breakfast at Lake Tahoe, and then proceeded north on U.S. 50 toward Carson City. As she approached Elk Point Road she came over the crest of a hill, travelling about 40--45 miles per hour, in the outside or east lane. At a distance of about 1000 to 1500 feet she observed a beer truck and a white automobile stopped on Elk Point Road, on opposite sides of U.S. 50 at the intersection. She then changed to the inside lane, and approximately 150 feet from the Elk Point Road intersection observed the white Pontiac directly in front of her. She applied her brakes, sounded her horn, swerved to the right, or east, but collided with Mrs. Dickinson's automobile.

The jury returned a verdict for respondent. Appellant moved for a new trial, which was denied and from which this appeal is taken.

The issues for our decision are these:

I. Did the giving of Instruction No. 29 concerning the duty of an automobile passenger to look out and give warning constitute reversible error?

II. Was it reversible error to give Instruction No. 12 concerning the standard of care which must be exercised by one suffering from a physical impairment?

III. Did Instruction No. 18 unfairly and erroneously state the law of the right-of-way of a driver upon a public highway?

I. Instruction 29 reads as follows: 'A passenger in an automobile is under a legal duty to take ordinary precautions for her own safety and to use ordinary care for her own protection, and whether or not she exercises ordinary care for her own safety is a question of fact for the jury to decide. A passenger in an automobile cannot shut her eyes to danger in blind reliance upon the driver, but must take such action for her own protection as a person of ordinary care and prudence would take under the same or similar circumstances.'

Appellant contends it was error to give the last sentence of that instruction because it (1) incorrectly states the law, (2) was not warranted by the facts in the case, (3) was argumentative, and (4) was prejudicial because of the manner it was commented upon by respondent's counsel during argument.

Respondent, on the other hand, contends Instruction 29(1) was not objected to with specificity as required by NRCP 51, (2) imposed upon the passenger only the duty of ordinary care, and (3) was proper under the facts and circumstances of this case.

A. During settlement of instructions, counsel for appellant made the following objection to Instruction 29: 'We object to the giving of Instruction 31 (now No. 29) on the grounds that the statement is simply taken from a case, not from any appropriate book of instructions, and we object particularly, your Honor, to this phrase, 'A passenger in an automobile cannot shut her eyes to danger in blind reliance on a driver, but must take such action for her own protection as a person of ordinary care and prudence would take under the same or similar circumstances.'

'I think the first part of the--the first sentence correctly states the law. I think the second part reiterates and emphasizes and uses adjectives, where it shouldn't be using such words as 'blind reliance,' and things like that. That's argumentative.' (Emphasis added)

The Court, in ruling on the objection stated, 'All right, it will be noted.'

NRCP 51 states in part that: 'No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.' (Emphasis added)

The rule has been interpreted in several decisions by this court. They are: Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212 (1955); Wagon Wheel Saloon and Gambling Hall, Inc. v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962); Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963); Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855, 20 A.L.R.3d 648 (1964); Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966); Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), and Tidwell v. Clarke, 84 Nev. 655, 447 P.2d 493 (1968). The specific objective of the rule is to apprise the trial court of error before it occurs and to assist the judge in giving legally correct instructions to the jury.

Appellant's counsel told the court the first sentence of Instruction 29 correctly stated the law, a fortiori; the second sentence incorrectly stated the law. He also specifically told the court it was argumentative and that considering the objection as a whole, it would be prejudicial. The judge indicated he understood the objection by stating, 'All right, it will be noted.'

Is that a sufficient objection under the authorities to preserve the error for our consideration? We think so.

Counsel, in the heat of a trial, cannot be expected to respond with all the legal niceties and nuances of a brief writer. If no objection to an instruction is made, there is no compliance with Rule 51 and the error is not preserved for appellate consideration. Wagon Wheel Saloon and Gambling Hall, Inc. v. Mavrogan, supra; Hotel Riviera, Inc. v. Short, supra; Shoshone Coca-Cola Bottling Co. v. Dolinski, supra. If an objection is so general that it does not state any ground, review will be denied. Lathrop v. Smith, supra. If it is merely contended that an instruction is 'proper' and should be given, review is precluded unless there is 'plain error.' Downing v. Marlia, supra. And in Tidwell v. Clark, supra, we gave an example of 'plain error.' We think the objection here meets the test of Tidwell v. Clarke. Appellant's counsel was sufficiently alert and legally observant to agree with the court that one sentence of Instruction 29 correctly stated the law, while another did not. Counsel, in their briefs before the court, have spent hours and pages researching, legally analyzing and arguing the correctness of that one sentence of Instruction 29. It will still not be settled in this state unless we agree to consider the alleged error. It seems harsh to refuse consideration of an alleged erroneous instruction under these circumstances.

Was the second sentence of Instruction 29 erroneous, and if so, was it prejudicial, requiring reversal and retrial? We think it was prejudicially erroneous. We also think it was not supported by the evidence.

B. There is no question but that a passenger in an automobile has a legal duty to take ordinary precautions for his own safety, use ordinary care for his own protection, and that the determination of whether this duty is complied with is one of fact for the jury.

It is also unquestionably the majority rule in the United States that a passenger in an automobile has no duty of lookout or duty to warn the driver in the absence of special circumstances. Restatement of Torts Second, Sec. 495, Comments c--f, pages 556--558; Duffy v. Flynn, 72 Nev. 278, 302 P.2d 967 (1956); Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965); Drake v. Driscoll, 267 F.2d 274 (5th Cir. 1959); Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1 (1960); Lamfers v. Licklider, 332 S.W.2d 882 (Mo.1960); Robinson v. Cable, 55 Cal.2d 425, 11 Cal.Rptr. 377, 359 P.2d 929 (1961); Pobor v. Western Pacific Railroad Co., 55 Cal.2d 314, 11 Cal.Rptr. 106, 359 P.2d 474 (...