*1 сertainty say “I cannot with medical disease, pre-existing
extent to which the opposed employment trauma con- Mr. Potter’s current disabili-
tributed to * * * ty. required my If I was to render guess question, I
best educated on this say employment
would related trau- probably
mas constituted 25% 40% partial permanent
the total cause of the
disability Mr. Potter current- from which
ly suffers.” speculation, especially when
This kind of history given by questionable
based on a claimant, satisfy could not the claim- proving
ant’s causation. burden summary, we think that district position
court—which was in a better demeanor, veracity
judge the truth and weighed witnesses testi-
mony of Dr. Kline and the other witnesses
testifying reasonably the trial —could
have found claimant on the causa-
tion element. The district court’s denial of great contrary
the claim was not to the
weight of the evidence.
Affirmed. McCARTHY,
Dennis (Plaintiff), AND
WHITLOCK CONSTRUCTION (Defendant). SUPPLY, Appellee No. 84-211. (argued) Tracy Dick L. Kahl J. Co- Kahl, Powell, penhaver Copenhaver & Supreme Wyoming. Court of for 6, March 1986. Olson, Goppert James M. Guill & Cody, THOMAS, C.J., ROSE,*
Before ROONEY,** CARDINE, BROWN JJ. ** * Retired Retired November 1985. November 1985.
CARDINE, Justice. struction Supply. and While school was in session campus the occupied by ap- was an by appellant This was action to recov- 2,000 students, proximately faculty and damages er for injuries as a suffered result staff frequently members who were re- tripping of his falling open and an into quired to cross the construction due site to trench crossing project being while a street its сentral project location. The for called by appellee. appor- constructed A verdict appellee perform to preparation site tioning comparative negligence in the grading prior repaving, to including install- accident, to appellant ap- 85% to 15% ing curbs, gutters, lighting, irriga- and an pellee, by was jury. During returned tion system pedestrian for islands called the course of court ruled that by for plans. appellant’s At the time of several exhibits by appellant offered as injury, appellee dug applicable evidence of had safety standards in trenches industry approximately the construction were not admissi- two feet wide and two appealed claiming deep ble. feet irrigation has to install electrical and ruling systems. effect of this was prevent him These by trenches were bordered establishing appellee from that had breach- a series of stakes string running be- ed applicаble by standard of care fail- tween height approximately at a of six ing provide adequate or warnings barri- ground. inches off the appellant’s was protection cades for of theory he tripped had over the stakes around the construction site. Our review string falling open into the trench. of the reсord has not established as- Two plywood crosswalks these over prejudicial, serted error as and we affirm. trenches had been by appellee; installed however, these were not used appellant
Appellant states the issues to be: at the time of the accident. Other than “1. The improperly District Court im- providing the crossings two over posed ‘locality’ rule a rule of local trenches, appellee pre- took no additional custom exclude testimony concerning pedestrian cautions to direct traffic industry safety standards. through the construction site. “2. The District Court improperly ex- industry safety cludеd evidence of codes A complaint alleging appellant in- was promulgated and standards by the con- jured as result of appellee’s negligence industry, govern- struction the federal failing provide adequate warnings Safety ment and the National Council in placement notice of of its the stakes аnd that such standards and codes contained string April near trenches was filed on material, competent relevant and evi- 18, answer, appellee 1983. In its denied proper safety management dence of any negligence appellant’s and asserted construction site.” own comparative nеgligence as a defense. Our discussion will confined sec- begin- The was matter tried before a ond issue which we deem to be determina- 21,1984. ning on June returned a appeal. tive of the verdict in favor of appellee on June 1984, allocating negli- percentages McCarthy, appellant, Dennis was em- gence at for appellant 85% for 15% ployed journalism during aas instructor Judgment was verdict the fall semester of 1982 at Northwest July judgment entered 1984. From this Community College Powell, Wyoming. appellant appeals. 9, 1982, September On was cross- ing Street the cam- Seventh which bisected appellant sought At trial to introduce pus way on his from his the ad- office to excerpts safety published by from manuals building ministration when he fell and was Administration, Highway the Federal injured. Council, Safety National and the Associat-
At time ed injured, was Sev- General Contractors America ex- process' being during testimony enth Street was in the hibits of his by appellee, reconstructеd Whitlock Con- witness. These documents set forth rec- ommended measures for the applied avoid- to all other contractors of a pedestrian during ance of accidents road- similar nature at the time the accident way Appel- construction and excavations. place. took That dоes not you mean that, lant contends as a result of the opinion your expert cannot elicit an from court’s refusal to admit these exhibits into weight have, whatever evidence, prevented he from was establish- least at this time.” ing appellee duty breached *3 required by 103(a)(2), W.R.E.2, As Rule by complying recognized safety with appellant proof stating made an offer of industry. standards in the construction that the exhibits were admissible as evi- Specifically, argued it is that the trial court reasonable, dence improperly imposed “locality of what a a rule” stan- careful con- by judge dard which to the reasonableness traсtor proper signs, would have used for appellee’s was lower than guard barricades and line project on the “to required that in industry the construction provide safety traveling public, pe- for the generally. protection destrians and for the private respect
The record
to the
propеrty”
required by
with
introduc-
city
the Powell
tion of these
exhibits at
reflects that
ordinance at the time of the accident. The
they
originally
admitted into evidence
court did
proof,
not rule on the offer of
but
appellee
being
by
during
after
used
the exhibits were not reintroduced into evi-
city engineer
direct
of the
exаmination
dence.
city
of Powell.1 That witness testified
that the standards set forth in those exhib-
The trial court erred in not admit
officially adopted by
its had not been
local
ting
See,
the exhibits into evidence.
An-
ordinance.
not.,
(1974).
ance which does not affect substantiаl
tractor
project
who undertakes a
in or
rights
disregarded.”
7.04,
shall
Rule
near a
duty
sidewalk
street is under a
103(a), W.R.E.,
W.R.A.P. Accord Rule
pro-
exercise reasonable care for the
supra, n.2.
rightfully
tection of those
proximi-
ty of the
the burden of
work.
contractor has a
is
duty
guard, or
prejudicial.
proper signs,
establish an error as
maintain
Herman
Speed King
barriers,
v.
Manufacturing Company,
lights
warning signals
or other
supra;
Graves, Wyo.,
Cervelli v.
661 P.2d
as needed or reasonable under the cir-
(1983);
Cederburg
Carter,
all
pro-
cumstances at
times in
order
(1968).
Wyo.,
the course of its
sent
admit into evidence
judge requesting
a note to the
instructions
er-
safety standards amounted to harmless
interrogatory
on how to answer an
on the
ror. Had the trial court admitted the safe-
finding
their
verdict form to reflect
standards,
might
ty
well have mea-
negligent, they
they
found
while
a
sured
did not
he
met his burden of
believe
had
of care and rendered a verdict
standard
establishing
by preponderance
a
evi-
more favorable to
The trial
tripped
dence that he
over
stakes
error, therefore, prejudiced appel-
court’s
appropriate
cord. An
modification and
lant, and he is entitled to reversal and a
verdict,
appel-
finding was made on the
Speed King
trial.
new
See Herman v.
object
lant did not
when it was returned.
Wyo.,
Manufacturing Company,
675 P.2d
After
than
of deliberation
less
four hours
(1984);
Builders, Inc. v.
ABC
finding appel-
a verdict
returned
(1981).
Phillips, Wyo.,
as to the City 20.3-202 sets “Powell Ordinance § prejudicial.” LaVine Clear Creek of conduct for a reason- forth a standard Corporation, F.2d Skiing engaged in the business of able man * * (10th Cir.1977). Instruction street construction Affirmed. No. 8.
ROONEY, Justice, concurring. specially ability upon jury’s This restriction by the I concur in the result reached apply appropriate standard of cаre majority opinion on the basis that it is appellant. jury If the clearly prejudiced or not the exhibits immaterial whether appellee’s to measure permitted had been inasmuch improperly excluded standard, a rea- appellant. I prejudice exclusion did not jury possibility exists that sonable unnecessary ques- to decide the believe it is higher percentage attributed a would have in proper improper tion of exclusion this negligence appellee, with a of the total majority holding on case and consider the percentage in the of concomitant reduction may may to be dicta. that issue appellant. negligence assigned to total accurate, ready I to address but am not might well have The verdict in such case it in this case. favorable to been more ROSE, Justice, dissenting. finding their of harmless support In error, majority note that the failed holding agree with the I am unable to resulted appеllant’s injuries majority trial court’s refusal to to find that that the tripping over the from his stakes cord
surrounding the trench. The essential case, however,
question this is not appellant’s tripping
whether over the cord damages,
caused his but whether duty (i.e.,
breach of failure take ade-
quate protective measures at construc- site) appellant’s damages.
tion caused regard, jury specifically
this found that
appellee negligently maintained work negligence proximately
site and that such appellant’s injuries.
caused
Thus, all of the appellant established ele- negligence
ments of his cause of action recover,
against appellee. He failed to
however, negligence assigned because his
exceeded that I would reverse opportuni- afford
this case to
ty proper establish standard
in light of all of the evidence and relevant permit to determine the relative
degrees negligence appro- based such
priate standard of care.
Timothy HUPP, L. Your d/b/a Petitioner, Appearance,
EMPLOYMENT SECURITY COMMIS WYOMING, Respondent.
SION OF
No. 85-149.
Supreme Wyoming. Court of
March 1986. McDaniel,
Rodger Wyoming Southeast McDaniel, Rodger Chey- Law Offices of enne, petitioner.