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Munns v. Swift Transportation Co.11/6/2002
n the present case required the jury to decide the extent, if any, of Swift's negligence. The terms of the special verdict, however, did not ask the jury to specify whether it was ordinary negligence or negligence per se. The effect of the erroneous instruction on the jury cannot be measured, but it is conceivable that the jury determined that Swift's conduct failed to comply with I.C. ยง 49-1301(1) and was, therefore, per se negligent. Applying the reasoning from Salinas, supra, we hold that the error in the instructions, which may have misled the jury and prejudiced Swift, was not harmless. Swift is entitled to a new trial due to the erroneous instruction.
Our disposition of the case renders it unnecessary to decide the remainder of the issues raised in the appeal and cross-appeal. Because the district court at the new trial may again be requested to include unknown persons on the special verdict form, however, we will discuss that issue to provide guidance in further proceedings.
The question of whether to include additional parties on the verdict form is resolved not by inquiring whether a judgment would or could be rendered against that person, but whether his conduct or his product caused or contributed to the accident and injuries. Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 726 P.2d 648 (1986). In the case before the Court, Tim Jenkins, who was not a named party, was listed on the special verdict form for the jury to consider as having caused or contributed to the accident. Swift argues that in a similar fashion, consideration of the fault of an unknown party responsible for opening the gate to the pasture should have been put before the jury. Swift contends that because there was evidence presented at trial to show that the conduct of an unnamed, unknown party may have allowed the gate to open, the jury should have decided the negligence and comparative fault of that party.
The evidence concerning the possible involvement of other, unknown parties came in through the testimony of Tim Jenkins. He testified that: "Some person had to have opened the gate because it's impossible for a horse to have done that." He testified that he had checked the pasture after the accident and found the gate laid open in such a way that only a person could have done it. He did not report seeing footprints or any evidence that persons had been in that vicinity, nor did he give any indication as to when the gate had last been checked prior to the horse's escape. Tim Jenkins' opinion testimony was not refuted by other evidence.
At the close of the evidence, the district court concluded that Jenkins' suggestion of the involvement of unknown parties was too speculative and the court refused to instruct the jury on the possible liability of unknown parties. Swift duly objected to the court's decision. Later, during its deliberations, the jury submitted a question to the court, asking about the possibility of assigning negligence to an unnamed party who might have opened the pasture gate. The court instructed the jury to consider only the parties named in the special verdict form.
We are of the view that if the same or closely similar evidence is submitted on retrial, the jury should be allowed to consider the possibility of the circumstances asserted by Jenkins when the jury apportions fault among all tortfeasors guilty of causal negligence whether named as a party or not.
V. CONCLUSION
The order denying Swift's motion for a new trial due to erroneous instructions is reversed. The case is remanded for a new trial on the questions of liability and damages.
Costs on appeal are awarded to the appellant, Swift Transportation Co., Inc.
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