Vinich v. Teton Construction Co. ( 1974 )

Mr. Justice McINTYRE

delivered the opinion of the court.

Mabel Vinich, Administratrix of the Estate of Kenneth G. Mitchell, Deceased, brought an action for wrongful death after Mitchell had been killed in a head-on collision between a truck and a 1955 Chevrolet station wagon. The station wagon was owned and driven by William J. Spangler. He and Mitchell were members of a drilling crew which had been working on a drilling rig north of Gillette, Wyoming. The truck belonged to Teton Construction Company. It was being used in connection with a construction contract for road repairs on the portion of the roadway where the accident occurred. The accident took place approximately 3:30 in the afternoon on May 3, 1969, as the drilling crew was returning from the rig site to Gillette. The Spangler vehicle overtook a heavy oil field truck. The head-on collision occurred with Teton’s truck when Spangler attempted to pass this oil field truck. The evidence indicates visibility was poor because of blowing dust.

Following trial to a jury, a verdict was returned for the defendant. The adminis-tratrix, being dissatisfied with the verdict, has appealed to our court.

Her first assignment of error is that the court erred when it allowed a motion in limine by Teton Construction Company. The motion, as allowed by the court, prohibited plaintiff from introducing any of the provisions of a certain construction contract. The construction contract was between Teton Construction Company and the Wyoming State Highway Department. It related to the portion of highway where the accident occurred.

In allowing the motion, the trial judge said “none of it [the contract] is admissible right now.” He said the evidence should be introduced and if there were matters in the contract to be submitted to the jury it could be done in the instructions. In fact, as discussed later in this opinion, the court did instruct on the contract and quoted the portion of the contract dealing with dust control. In view of this ruling and later instruction, we cannot say granting of the motion in limine was prejudicial or reversible error.

The trial court in this case chose to follow the line of cases which hold that the contract specifications do not set a standard of care for, nor change the duty of, the contractor to the traveling public; but rather may be considered along with the other evidence in the case in determining what a reasonably prudent contractor would or would not have done under all the circumstances of the case.¹

Since plaintiff-appellant did not object to Instruction 9, the law of the case, insofar as she is concerned, must be considered to be that expressed in such instruction. Joly v. Safeway Stores, Inc., Wyo., 502 P.2d 362, 365. Instruction 9 instructed the jury as follows:

“You are instructed that the highway construction contract between defendant, Teton Construction Co., and the State Highway Commission of Wyoming provided as follows:

“ ‘The traveled lanes shall be kept free of dust and when necessary, they shall be sprinkled with water or some other dust palliative shall be applied.’

“You are instructed that the terms and specifications of the contract between the defendant and the State Highway Commission of Wyoming do not set a standard of care for nor change the duty of the contractor to the traveling public; but you may consider such contract terms or specifications along with the other evidence in the case in determining what a reasonably prudent contractor would or would not have done under all the circumstances of the case.”

Appellant’s second assignment of error is that during the course of trial plaintiff offered certain exhibits for the purpose of showing the amount of water Teton Construction Company caused to be placed on the surface of the highway following the accident. These exhibits were rejected and the plaintiff claims that was error.

The general rule with respect to repairs and improvements made after an accident, as stated in 29 Am.Jur.2d, Evidence § 275, p. 323, is this:

“It is almost universally held that evidence of repairs, change of conditions, or precautions taken after an accident or injury, is not admissible as evidence or an admission of negligence before the accident.”²

Plaintiff seeks to rely on the exception sometimes recognized that evidence of subsequent repairs, alterations, or precautions may be admissible in rebuttal or impeachment of a witness. In the instant case, however, we believe the court was justified in not departing from the general rule. Had such exhibits and the ensuing testimony thereon been permitted, it would necessarily have brought many collateral issues into the case to confuse the jury. Even if there was error in that regard, and we are not saying there was, it would appear to be quite harmless and its prejudicial effect not demonstrated. Moreover, appellant has cited no case authority for her contention.

The third error claimed by appellant is that the trial court failed to instruct with respect to concurring negligence. The instruction offered by appellant on this subject would have instructed that there can be more than one proximate cause of an injury when the negligence of two or more persons is concurrent; and that it is no defense if the negligent conduct of another person was also a proximate cause of the injury. Appellant correctly argues that without the guidance furnished by such an instruction, the jury could easily be confused on the matter of proximate cause.³

In this particular case, the jury is sure to have been confused on the matter of proximate cause because of an instruction which was given. This instruction undertook to define proximate cause and concluded with these words:

“This is a technical definition and the term proximate cause might more simply be defined as the real cause.” [Emphasis supplied.]

Obviously, when the court undertook to say that proximate cause can be defined as “the” real cause, it eliminated entirely the possibility of concurring negligence and in effect said to the jury that there could be only one cause of an accident. This was prejudicial error to the extent that the case must be reversed and remanded for a new trial.

Reversed and remanded for new trial.

1 . The correct rule pertaining to the matter of the reception of public contracts in evidence is well delineated in Larson v. Heintz Construction Co., 219 Or. 25, 345 P.2d 835, 849, where it is said that the contracts may come in as evidence of what is reasonable care, provided that the court should in the first instance construe the contract to determine what provisions should be brought to the attention of the jury.

2 . See Morin v. Chicago and Northwestern Railway System, S.D., 209 N.W.2d 895, 897; Livingston v. Fuel, 245 Ark. 618, 433 S.W.2d 380, 381; Otis Elevator Company v. McLaney, Alaska, 406 P.2d 7, 15; Morrison v. City of Butte, 150 Mont. 106, 431 P.2d 79, 83-84; 64 A.L.R.2d, § 3(a), p. 1300, and 64 A.L.R.2d Later Case Service, § 3, p. 25.

3 . Pigg v. Brockman, 85 Idaho 492, 381 P.2d 286, 291; Strickland v. Powell, 10 N.C.App. 225, 178 S.E.2d 136, 139; Caldwell v. St. Louis Public Service Company, Mo., 275 S.W.2d 288, 293; Burd v. Bleisher, 208 App.Div. 499, 203 N.Y.S. 754, 756; 13 Blashfield, Automobile Law and Practice, § 463.26, p. 725 (1969).