Truckee-Carson Irr. Dist. v. Wyatt

Decision Date25 November 1968
Docket NumberNo. 5419,TRUCKEE-CARSON,5419
Citation84 Nev. 662,448 P.2d 46
Parties, 1970 A.M.C. 452 TheIRRIGATION DISTRICT, Appellant, v. Cecil WYATT, Jr., Respondent.
CourtNevada Supreme Court

Richard P. Wait, Reno, for appellant.

Bradley & Drendel, Reno, Boccardo, Blum, Lull, Niland, Teerlink & Bell, San Jose, Cal., for respondent.

OPINION

ZENOFF, Justice.

Truckee-Carson Irrigation District, hereinafter referred to as TCID, appeals from a judgment entered in favor of Cecil Wyatt, Jr. The judgment awarded Wyatt damages in the sum of $500,000 based upon a jury verdict awarding damages in that amount. The action grew out of an injury incurred by Wyatt while water skiing at Lake Lahontan in the counties of Churchill and Lyon, Nevada, on July 23, 1964. While water skiing, Wyatt suddenly somersaulted in the air and struck his head thereby sustaining a severe injury and resultant paralysis from the neck down.

Wyatt brought an action to recover damages for this injury from TCID and Joseph Broyles, who owned and was driving the boat when the accident occurred. The trial court granted a motion for a directed verdict in favor of Joseph Broyles. Judgment was entered on the verdict in favor of Wyatt against TCID. TCID appeals.

1. Negligence of TCID is predicated upon its failure to maintain its premises in a reasonably safe condition for use of its business invitees in a manner consistent with the purpose of the invitation and for failure to warn such invitees of known hazards. Lake Lahontan is an artificial lake created by the construction of Lahontan Dam. As the lake was filled it covered a land area on which grew trees and other vegetation. The primary function of the lake was to store water for irrigation purposes, but boating enthusiasts used the lake. This use increased to the extent that TCID imposed certain regulations which required that all boaters secure a permit. A part-time employee was hired to sell the permits and to patrol the lake, checking for boats without valid permits and for boats which were being operated in a reckless and unsafe manner. Prior to Wyatt's accident this employee had advised TCID's Board of Directors that submerged tree trunks constituted a hazard when the water level was lowered during the summer months, although he had not singled out the two stumps which figured importantly in this case. But this same employee had observed the exposure of these same two stumps by the receding water level in the year prior to the accident.

2. But TCID contends that even if it was negligent, the evidence does not establish that Wyatt was injured as a result of any of the described hazards or because of any unsafe condition of the premises. The jury was properly instructed on the issue of proximate cause, and it is clear that they found that the negligence of TCID was the proximate cause of Wyatt's injury.

The evidence presented by Wyatt was to the effect that he, Joseph Broyles and Chris Reyes went water skiing in the early afternoon on July 23, 1964 at Lake Lahontan. They took turns skiing. Wyatt used only one slalom ski. While Wyatt was skiing, Broyles was operating the boat. He pulled out about 500 feet toward the center of the lake and then made a right turn. This caused Wyatt to go to the left of the boat. After the turn, he crossed the wake of the boat and was skiing to the right of the boat. At this time the boat was about 100 feet offshore, due to the variations in the shoreline, and Wyatt's position was estimated to be 25 to 50 feet from the shore. Wyatt stated that the boat was going about 20 to 25 miles per hour, that the ride was normal, and that he did not lose his balance or fall from the ski. Wyatt stated that as he was skiing he hit something and was sent headfirst into the water. He stated that what he hit felt like a solid object, but that he could not tell exactly what it was. Evidence was presented that he was floating in water, which was about chest deep, and that his companions got out of the boat and floated him to shore and summoned help. The testimony of the event related by his two companions was substantially the same, except that they were not in a position to know what Wyatt struck. They stated that as they observed him he was skiing normally and suddenly his something and somersaulted through the air, holding on to the tow rope, and went headfirst into the water.

James Vaughn, the TCID partolman, was called to the scene of the incident. He stated that he observed a small limb and some wood chips floating just offshore. He identified the place on the beach at which he found Wyatt as being opposite a sandy point. A little more than a month later, when the lake level receded, he returned to the general area and noted a tree stump just opposite the point where he had observed the respondent and another tree stump a short distance away. He stated that these were the two tree stumps he had seen the year before. The nature of the injury suffered by respondent indicated a sudden blow on the head as its cause.

TCID claims that the jury could have found proximate causation only as a result of speculation and conjecture. But it is only where the evidence favorable to the party seeking recovery tends equally to sustain either of two inconsistent propositions that neither of them can be said to have been established by legitimate proof. Southern Pacific Co. v. Huyck, 61 Nev. 365, 128 P.2d 849 (1942). If the evidence favorable to Wyatt pointed to two or more possibilities to explain the accident, and if one or more of these conclusions is equally consistent with the nonliability of TCID, then the selection made by the jury as between these possibilities could be said to be based upon mere speculation and conjecture. The jury here might have concluded that Wyatt lost his balance and that he fell or that he came into the beach too fast in dismounting and struck the sand. However, there was direct evidence which raised the probability that the injury was caused by TCID's negligence, and it was the function of the jury to accept or reject this evidence. Barsland, Inc. v. Shaw, 83 Nev. 69, 422 [84 Nev. 666] P.2d 1003 (1967). Under these circumstances, its choice cannot be said to be based upon mere speculation or conjecture. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968). See also Wolf v. Reynolds Elec. & Eng. Co., 304 F.2d 646 (9th Cir. 1962) (Nev.); Lewis v. Drake, 116 Ga.App. 581, 158 S.E.2d 266 (1967).

3. TCID also contends that an instruction was erroneously given to the jury. 1 It contends that this instruction constitutes an expression of opinion by the trial judge which is prohibited by NRS 3.230 2 and Nev. Const. art. 6, § 12. 3 This instruction may have been merely an instruction by the judge calculated to call the jury's attention to special facts. This is often done when the jury is instructed to consider a child's age in determining its negligence or the short period of time within which to react in an emergency. Instructions cautioning the jury to carefully consider a witness's testimony are often given. Carlson v. State, 84 Nev. ---, 445 P.2d 157 (1968); Crowe v. State, 84 Nev. ---, 441 P.2d 90 (1968).

Assuming arguendo that the instruction was erroneously given, the error is harmless when considered in view of the whole record and the normal predilections of the jurors.

A judgment cannot be reversed by reason of an erroneous instruction unless upon a consideration of the entire proceedings it shall appear that such error has resulted in a miscarriage of justice. Prejudice is not presumed. Boyd v. Pernicano 79 Nev. 356, 385 P.2d 342 (1963); Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952). See also Eldorado Club Inc. v. Graff, 78 Nev. 507, 377 P.2d 174 (1962); Lee v. Baker, 77 Nev. 462, 366 P.2d 513 (1961). If the giving of the instruction was error, it is harmless because upon considering the entire record, it is not probable that a different result would ensue at a new trial free of the contested instruction. The burden is upon the appellant to show the probability of a different result. Serpa v. Porter, 80 Nev. 60, 389 P.2d 241 (1964); Gordon v. State, 273 Ala. 213, 137 So.2d 752 (1962); Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896 (1959); Kyne v. Eustice, 215 Cal.App.2d 627, 30 Cal.Rptr. 391 (1963); Edgett v. Fairchild, 153 Cal.App. 734, 314 P.2d 973 (1957); Casalo v. Claro, 147 Conn. 625, 165 A.2d 153 (1960); Enix v. Diamond T. Sales & Serv. Co., 188 So.2d 48 (Fla.App.1966); Carpenter v. Forshee, 103 Ga.App. 758, 120 S.E.2d 786 (1961); McCray Mem. Hosp. v. Hall, 226 N.E.2d 915 (Ind.App.1967); Traylor Bros., Inc. v. Alford, 230 N.E.2d 336 (Ind.App.1967); Osborn v. Lesser, 201 Kan. 45, 439 P.2d 395 (1968); Miller v. Braun, 196 Kan. 313, 411 P.2d 621 (1966); McCandless v. Manzella, 369 S.W.2d 188 (Mo.1963); Apodaca v. United States F. & G. Co., 78 N.M. 501, 433 P.2d 86 (1967); Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966); Tevis v. McCrary, 75 N.M. 165, 402 P.2d 150 (1965); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968); London v. London, 271 N.C. 568, 157 S.E.2d 90 (1967); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967); Jacobs v. Barefoot Oil Co., 265 N.C. 454, 144 S.E.2d 275 (1965); Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967); Zimmer v. Bellon, 153 N.W.2d 757 (N.D.1967); Plank v. Heirigs, 156 N.W.2d 193 (S.D.1968); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (S.D.1958); Cook v. Blytheville Canning Co., 210 Tenn. 414, 359 S.W.2d 828 (1961); Martinez v. H. E. Butt Grocery Co., 379 S.W.2d 94 (Tex.Civ.App.1964); Hall v. Blackham, 18 Utah 2d 164, 417 P.2d 664 (1966); Collier v. Nolan, 125 Vt. 82, 211 A.2d 265 (1965); cf. Trombley v. Jennings, 189 So.2d 516 (Fla.App.1966); Batts v. Carter, 312 P.2d 472 (Okl.1957); Baldwin v. State, 126 Vt. 70, 223 A.2d 556 (1966).

Furthermore, if the requirements of Rule 61 of the Nevada Rules of Civil Procedure are fulfilled, then there was only harmless error. The standard...

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