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District Court of Appeal, Third District, California.

James DAVIS, Plaintiff and Appellant, v. Stein ERICKSON, Chris Kuraisa, George Canon, Rudolph Gersick, Phillip Musso and Bente Larssen, Defendants and Respondents.*

Civ. 9578.

Decided: November 12, 1959

Landis, Brody & Martin, Sacramento, for appellant. Russell A. Harris, Sacramento, for respondent.

This is an appeal from a judgment entered upon a defense verdict in a personal injury action.

Appellant was seriously injured while taking instructions at a ski school operated by respondents. He was one of a small class of five to eight intermediate beginners which was being taught by the respondent Larssen. The class was being conducted on the lower level of one of the ski slopes. Under the guidance of respondent Larssen, the members of the class would go approximately half way up the slope, using a tow, and then, under Larssen's direction, would descend the slope in a zigzag fashion, making the turns which they were being taught. They had gone through this maneuver two or three times prior to the accident. Appellant was an inexperienced skier and was learning an elementary turn. On this occasion respondent Larssen demonstrated the turn, stopping about 10 feet lower down the slope than appellant and some 35 or 40 feet out from the position of the class near the tow rope. Having arrived at that spot, Larssen turned and faced appellant, looked up the slope, and then motioned him to ski toward her. This he proceeded to do after he looked up the hill to see that no other skier was coming down from above. As he neared Larssen she screamed, and appellant then looked over his shoulder and saw another skier practically in collision with him. Appellant threw himself flat on the snow, but one of the skis of the other skier struck him, inflicting serious injuries.

The issues of negligence, contributory negligence, assumption of risk and proximate cause were submitted to the jury. Appellant here contends the verdict in favor of respondents is not supported by the evidence and also that the trial court committed prejudicial error in failing to reread certain instructions to the jury.

We think it must be held from the record that the trial court properly submitted all four issues to the jury. First, as to negligence on the part of respondents, it appears that respondents, by advertising, had held themselves out as being particularly well able to give instruction to all classes of skiers and that their facilities were adequate. There is, and could be, no dispute that toward those who were being instructed they owed a duty of care to see to it that pupils were instructed under reasonably safe conditions. The slope was fairly crowded by other skiers while the class was being conducted, and it was shown that collisions among skiers under such conditions were not unusual. On the other hand, and touching the matter of due care under all the circumstances, it must be remembered that we are not dealing with guarantees of safety nor with any danger not obvious to anyone participating in the activity on the slope. It was shown that the existing conditions were not uncommon; that, due to the gentle slope of the ground, the area used was one ordinarily used by beginners, whether members of classes or not, and that the more experienced skiers ordinarily used the steeper slopes. There were, in all, three slopes, one for beginners with little or no experience or skill, which was the one used to instruct appellant and his classmates, one of a steeper incline used by more experienced skiers, and then a top slope reached by chair lift and a tow rope. There was testimony that to have attempted to block off an area for the class by the use of ropes or other devices on the hill would have created obstructions dangerous to skiers and would have made the instruction ineffective. Under the circumstances it was a question for the jury to determine whether or not due care was used in instructing the appellant. If the general verdict of the jury was placed upon the ground that proper care was taken it is supported substantially by the record.

As to contributory negligence of appellant, it appears that, though he was inexperienced in skiing, he was a young man who had had the benefit of a good education; that he had been admitted to the practice of law; that he was rather athletic by nature; that he was aware that under the conditions pertaining on the slope at that time there was danger of collision with other skiers; that when the instructress Larssen signaled him to ski toward her and to execute the turn he was learning he looked up the slope before starting to see whether or not there was any apparent danger of a collision, determined that there was not and started skiing slowly toward the instructress; that he did not look again until collision was inevitable. Although we view the evidence as to contributory negligence on appellant's part as slight, nevertheless there was sufficient in the record to sustain a verdict based upon that theory.

On the issue of proximate cause there was testimony that the skier who collided with appellant was one of some experience; that he knew the danger of crossing the beginner's slope and yet did so at a high rate of speed so that he was unable to avoid the collision. We think the jury could have concluded that the negligence of this skier was under all the circumstances the sole proximate cause of appellant's injury.

As to assumption of risk, there was in addition to what we have said testimony that on the day of the accident appellant had been up the rope tow at least three times and had then progressed zigzag down the slope, receiving turn instruction; that he had observed it was crowded on the hill; that he saw skiers crossing through and passing around the students in his class as well as around other skiers on the slopes; that he had seen several near misses between skiers; that he realized he could have left the class at any time and, knowing the conditions and the danger of collision, he practiced on the slope at least on two occasions before the one during which the collision occurred. He testified that he knew the skiers on the slope were ‘on their own’ and were under no particular control of respondents. Under these circumstances it was proper for the court to instruct on the assumption of risk and the verdict of the jury could have been based upon that theory.

It is to be noted that appellant did not request special verdicts. Consequently, the judgment appealed from must be affirmed if upon any of the four theories of defense the record will support the judgment.

After the jury had deliberated for some time it returned to court and requested that the court read again the instructions on negligence and assumption of risk. The trial judge read some of the requested instructions, but not all, and then inquired whether or not he had read the instructions they had in mind and as to whether or not they wished other instructions read ‘such as ordinary care, proximate cause, and contributory negligence and other matters which pertain to the question of negligence’. The foreman then said, ‘Your Honor, the jury requests to have all of them read’ and the court replied, ‘All right’. The court then read further instructions and then said to the jury, ‘Having read all the instructions pertaining to negligence and all the instructions pertaining to the doctrine of assumption of risk, do you feel there are other instructions you desire to inquire into?’ The foreman replied in the negative. It appears, however, that the court did not read all of the instructions on negligence. Appellant points out that three of plaintiff's instructions were omitted on rereading. One of them contained the following: ‘Defendants in this case are charged with negligence in the operation, management and control of the ski school in which plaintiff James Davis was a student. The question is whether the defendants in the operation, management and control of the ski school used the same care as persons of ordinary prudence would use under the same circumstances.’ Another read as follows: ‘Defendants are guilty of negligence if they did not use the ordinary care of a reasonably prudent person in the operation, management and control of the ski school in which plaintiff James Davis was a student. You are instructed that defendants are not relieved of liability for negligence in the operation, management and control of said ski school by any intervening act of another which caused injury to plaintiff James Davis if the intervening act was reasonably foreseeable by defendants. Where the intervening act is reasonably foreseeable the chain of causation is not broken and the original actors remain liable.’ Another was: ‘Defendants in this case are required to exercise ordinary care in the operation, management and control of their ski school. Defendants were guilty of negligence if there existed a danger to the pupils that was known to them and in the exercise of ordinary care they failed to guard the pupils against said danger, or if there was a danger to said pupils unknown to defendants which by the exercise of reasonable care under the same circumstances a reasonably prudent person would have discovered and would have guarded the pupils against.’ When appellant's counsel became aware that these three instructions had not been reread the jury had already returned to the jury room and had resumed their deliberations. Counsel called the attention of the court to the omission and requested that the jury be recalled and that these three instructions be read. Counsel for respondents objected that to do so would overemphasize the matters covered. The court declined to call the jury back, saying that the law pertaining to the subject of negligence had been completely covered by the standard instructions given and reread and that the omitted instructions simply emphasized the same rules of law from the plaintiff's standpoint.

The situation is one which presented a matter within the discretion of the trial court. The complaint is not that the jury had not been fully instructed nor that these three omitted instructions had not been once read to them. Whether as argued by appellant's counsel, the failure to read them, coupled with the statement of the court that all of the instructions on negligence had been reread, might cause the jury, or some jurors, to believe, that the contents of the omitted instructions were out of the case, or whether, as argued by counsel for respondents, the recall of the jury to read the omitted instructions would have overemphasized the contents thereof, particularly with regard to foreseeable dangers not breaking the chain of causation, were matters for the trial court to determine and were of such nature that we cannot here say that legal discretion was abused.

The judgment is affirmed.

I dissent. My disagreement with the majority opinion pertains solely to the conclusion that the trial court did not abuse its discretion in refusing to reread all of the instructions on negligence as requested by the jury (contrary to its statement to the jury that it had), and in particular the only one proffered on the question of intervening cause.

The plaintiff in this case was in much the same position as was the plaintiff in McEvoy v. American Pool Corp., 32 Cal.2d 295, 195 P.2d 783. There the car in which plaintiff was a passenger was struck by a hit-and-run driver. In reversing an order of nonsuit, the Supreme Court held that ‘* * * the jury could have found that defendants owed a duty to persons in plaintiff's situation, and they cannot escape responsibility for their failure to perform that duty merely because of intervening acts the likelihood of which they reasonably should have foreseen.’ 32 Cal.2d at page 299, 195 P.2d at page 786. Here, although not mentioned in the majority opinion, the skier who struck plaintiff left the scene immediately following the accident, and his identity was not determined until approximately a week prior to the trial. Necessarily, therefore, here as in the McEvoy case plaintiff was compelled to predicate his case upon the theory that defendants, if negligent, were not relieved of liability merely by reason of intervening acts of a third person.

Although the majority opinion states the jury could have concluded that the negligence of the unknown skier was the sole and proximate cause of plaintiff's injury, the opinion also holds that ‘under the circumstances it was a question for the jury to determine whether or not due care was used [by defendants] in instruction * * *’ the plaintiff. If, then, under the circumstances of this case the question was one of fact for the jury, it follows that plaintiff not alone was entitled to have the jury fairly and impartially instructed (Inai v. Ede, 59 Cal.App.2d 549, 139 P.2d 76), but that he was also entitled to have the jury instructed upon his theory of the case. Edgett v. Fairchild, 153 Cal.App.2d 734, 314 P.2d 973.

The opinion further notes that the objection of defense counsel was that to reread the instruction on intervening cause would have been to overemphasize this phase of the case. It appears from comment of the trial court that while he agreed with defendants' argument, he also was of the opinion ‘* * * that under the circumstances the formula instruction should [not] be read * * * that the law pertaining to the subject of negligence is completely covered by the standard instructions'; that the ‘* * * instructions simply emphasize the same rules of law from the Plaintiff's standpoint’; and that since he believed the jury was ‘* * * well informed as to the principles of law which are subject to their inquiry, * * * to recall the Jury at this time now and read the formula instructions, I think, would only aggravate the situation more.’

In answer to the first argument, it would seem to follow that by a parity of reasoning the failure to reread the instruction on intervening cause, the only one offered, was equally prejudicial to plaintiff since it deemphasized that issue to such a degree as to effectively nullify the sole basis upon which he could recover. Secondly, none of the three instructions were formula instructions. Particularly was this true of the instruction on intervening cause. Next it cannot be said that the instruction on intervening cause would merely ‘emphasize the same rules of law from the Plaintiff's standpoint,’ since it was the only one offered on that subject. And, lastly, it may well be that the jury when first instructed was well informed of the principles of law involved. However the mere fact of the request that all of the instructions on negligence be read shows that the most exact information may be forgotten, misunderstood or confusing. Otherwise why did the jury make the request in the first place? It seems to me that to merely pose the question is to answer it.

Certainly if in the present case the court, in its original charge to the jury, had failed to give the offered instruction on intervening cause, this court would have had no hesitancy in reversing. A similar situation was presented in Kelley v. City and County of San Francisco, 58 Cal.App.2d 872, 137 P.2d 719, where a judgment was reversed for failure to instruct on the sole theory of plaintiff's case. But the majority says in effect that such is not the case here—the jury was once so instructed, hence the mere fact that the court failed to reread three of the instructions requested by plaintiff was of no consequence, even though one was the only instruction on that issue, and even though the jury had requested all of the instructions on negligence, and the trial court told the jury it had read all. I can agree with such conclusion as regards two of the instructions, since I believe it reasonably can be said that they were included in other instructions given. But the same cannot be said of the instruction on intervening cause. It was the only instruction offered on that issue—the only basis upon which plaintiff could recover. Without it he had no case. Thus to me it follows that the end result of the refusal to reread plaintiff's instruction on intervening cause was a failure to fully and impartially instruct the jury to the prejudice of plaintiff.

I would reverse the judgment.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., concurs.