Truckee-Carson Irrigation District v. Wyatt

448 P.2d 46, 84 Nev. 662, 1968 Nev. LEXIS 431

• Court: Nevada Supreme Court
• Decided: November 25, 1968
• Docket: 5419
• Status: Published

Opinions

OPINION

By the Court,

Zenoff, J.:

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 hit something and somersaulted through the air, holding on to the tow rope, and went headfirst into the water.

James Vaughn, the TCID patrolman, 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 (1967). Under these circumstances, its choice cannot be said to be based upon mere speculation or conjecture. Terminal Taxi Co. v. Flynn, 240 A.2d 881 (Conn. 1968). See also Wolf v. Reynolds Elec. & Eng. Co., 304 F.2d 646 (9th Cir. 1962) (Nev.); Lewis v. Drake, 158 S.E.2d 266 (Ga.App. 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 3.230² 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. 534, 445 P.2d 157 (1968); Crowe v. State, 84 Nev. 358, 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, 137 So.2d 752 (Ala. 1962); Shelby County v. Baker, 110 So.2d 896 (Ala. 1959); Kyne v. Eustice, 30 Cal.Rptr. 391 (Cal.App. 1963); Edgett v. Fairchild, 314 P.2d 973 (Cal.App. 1957); Casalo v. Claro, 165 A.2d 153 (Conn. 1960); Enix v. Diamond T. Sales & Serv. Co., 188 So.2d 48 (Fla.App. 1966); Carpenter v. Forshee, 120 S.E.2d 786 (Ga. App. 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, 439 P.2d 395 (Kan. 1968); Miller v. Braun, 411 P.2d 621 (Kan. 1966); McCandless v. Manzella, 369 S.W.2d 188 (Mo. 1963); Apodaca v. United States F. & G. Co., 433 P.2d 86 (N.M. 1967); Scott v. Brown, 416 P.2d 516 (N.M. 1966); Tevis v. McCrary, 402 P.2d 150 (N.M. 1965); Kanoy v. Hinshaw, 160 S.E.2d 296 (N.C. 1968); London v. London, 157 S.E.2d 90 (N.C. 1967); Gregory v. Lynch, 155 S.E.2d 488 (N.C. 1967); Jacobs v. Barefoot Oil Co., 144 S.E.2d 275 (N.C. 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, 92 N.W.2d 199 (S.D. 1958); Cook v. Blytheville Canning Co., 359 S.W.2d 828 (Tenn. 1961); Martinez v. H. E. Butt Grocery Co., 379 S.W.2d 94 (Tex. Civ.App. 1964); Hall v. Blackham, 417 P.2d 664 (Utah 1966); Collier v. Nolan, 211 A.2d 265 (Vt. 1965); cf. Trombley v. Jennings, 189 So.2d 516 (Fla.App. 1966); Batts v. Carter, 312 P.2d 472 (Okla. 1957); Baldwin v. State, 223 A.2d 556 (Vt. 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 of Rule 61 is pertinent. Eldorado Club, Inc. v. Graff, supra; Lee v. Baker, supra; Serpa v. Porter, supra. It is taken from tire Federal Rules of Civil Procedure so its interpretation there should govern here. It is clear that the doctrine of presumed prejudice has been rejected, 7 J. Moore, Federal Practice § 61.02 (2d ed. 1966), and the presumption of integrity of verdicts in civil cases is the rule. Id. at §§ 61.03, 61.11. “He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. Hoffman, 318 U.S. 109, (1943). The record must be considered as a whole. Jiffy Markets Inc. v. Vogel, 340 F.2d 495 (8th Cir. 1965).

The injured Wyatt and his ski-buddies consistently testified that Wyatt was skiing along until he hit “something” under the surface of the water. Vaughn, TCID’s caretaker, added that a month later when the water was down considerably he saw tree stumps at the site of the accident previously indicated by the boys. He was able to pinpoint it because it was almost immediately in front of his dwelling at the beach. Therefore they told a plausible story.

TCID in defense attempted to prove its case by impeaching Wyatt’s witnesses and by arguing that the jury should believe that Wyatt had hit the sand on the beach because hospital records prepared by a doctor, an admitting clerk and a nurse reflected that Wyatt had said that he was injured in a water skiing accident when he went toward the beach to end his skiing.

Neither the doctor nor the two women exactly recalled Wyatt’s statements after the accident nor did Wyatt or his companions know what he hit. Wyatt and his companions did say that he was not heading into the beach for a “whip” landing. Wyatt did not have any sand bruises or abrasions which would ordinarily have resulted had he hit the beach as TCID claimed. If we consider together the testimony of the doctor, and of the admitting clerk and nurse, and give full credence to what they claimed Wyatt said, in no way does the aggregate add or detract from the evidence which was already before the jury. Wyatt may have thought he hit a sand bar concealed in shallow water, but he did not know. Whether he was upset because of hitting sand is irrelevant anyway if it was the stump which hit his head and caused the injury. When the stumps became evident, the real cause of the injury became apparent, or so the jury could find.

The judge’s admonition in Instruction 14 merely directed the jury to consider special circumstances, such as the lack of knowledge of Wyatt and his companions and absence of sand burns, which appear to be nothing more or different than the average jury of reasonable persons could or would reasonably consider anyway. The presumption that the verdict was not the result of prejudice clearly is not rebutted nor is it probable that there would be a different result from a new trial.

4. It is also contended that Instruction 32,⁴ given with Instruction 33,⁵ was erroneous. It is well settled that before there may be found an assumption of risk, there must be a voluntary exposure to danger, actual knowledge of the risk assumed, and consent to assume it. Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966); Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965); Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961); Papagni v. Purdue, 74 Nev. 32, 321 P.2d 252 (1958); Hotels El Rancho v. Pray, 64 Nev. 591, 187 P.2d 568 (1947).

The instruction complained of is not erroneous.

Affirmed.

Mowbray, J., and Babcock, D. J., concur.

1 INSTRUCTION NO. 14:

“Any evidence that has been received of an act, omission, or declaration of a party which is unfavorable to his own interests, should be considered and weighed by you as you would any other admitted evidence, but evidence of the oral admission of a party, other than his own testimony in this trial ought to be viewed by you with caution.”

2 NRS 3.230. “District judge not to charge juries upon matters of fact. District judges shall not charge juries upon matters of fact but may state the evidence and declare the law. In stating the evidence, the judge should not comment upon the probability or improbability of its truth nor the credibility thereof. If the judge state the evidence, he must also inform the jury that they are not to be governed by his statement upon matters of fact.”

3 Nev. Const, art. 6, § 12. “Judges not to charge juries respecting matters of fact; may state testimony and declare law. Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.”

4 INSTRUCTION NO. 32. “A person has assumed a risk when he freely, voluntarily and knowingly, places himself in, or remains in, a position of danger and voluntarily exposes himself to a danger which he knows does exist. A person who thus assumes a risk is not entitled to recover for damages which resulted from the danger to which he thus exposed him.”

5 INSTRUCTION NO. 33. “While plaintiff, Cecil Wyatt, Ir„ may have assumed the risk of the normal spills incident to water skiing, he did not assume the risk of injury that would be caused to him by concealed objects or diminished depth of which he had no actual knowledge. The defense of assumption of risk requires actual knowledge of a specific hazard that produces injury and a voluntary consent and exposure to it on his part.”