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England v. Costa11/10/2005
onitor strip on January 4, 1998 (as well as the days leading up to January 4), and in failing to respond to the abnormalities and decelerations on the strip by performing a cesarean section on January 4. The Englands further alleged that the nurses were negligent when they failed to properly evaluate the fetal monitor strip and failed to keep Dr. Costa informed of the information on the monitor strip. The effect of the modified AMI Civ. 602 instruction, the Englands contend, is that Dr. Costa was insulated from liability because the instruction informed the jurors that Dr. Costa could not be negligent for assuming that the nurses would not act negligently. By telling the jurors that Dr. Costa had a right to rely on the nurses to use ordinary care, the Englands assert, there was no way that Dr. Costa could have been found negligent.
The crux of the Englands' argument is that AMI 602 is only intended to be used in cases involving contributory negligence, and they assert that the cases addressing the instruction are all contributory negligence cases, usually involving automobile accidents. See, e.g., Rexer v. Carter, 208 Ark. 342, 186 S.W.2d 147 (1945); Kirby v. Swift & Co., 199 Ark. 442, 134 S.W.2d 865 (1939); Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856 (1927) (opinion on rehearing). As such, they contend, given the fact that there was no allegation that Daphne England was herself negligent in any way, the instruction should not have been used at all, let alone in the modified form in which it was given in the instant case. We agree.
Rexer v. Carter, supra, involved an automobile accident in which the defendant, Rexer, ran a stop sign and collided with Carter. Carter sued, and Rexer defended by saying that Carter should have known that he could not observe the traffic that was approaching the intersection. The trial court submitted to the jury the questions of negligence and contributory negligence, and the jury found in Carter's favor. This court affirmed the use of the instruction, noting that the jury could have found from the testimony that Carter was not bound to anticipate Rexer's recklessness in running a stop sign. In so affirming, this court noted that the driver of an automobile has the right to assume that the driver of another automobile will obey traffic laws, and he is not guilty of contributory negligence in acting upon such assumption. Rexer, 208 Ark. at 345.
Likewise, in Kirby v. Swift, supra, this court held that a plaintiff had the right to assume that no one would park a car on the road without lights; in such a situation, the issue of whether the plaintiff was exercising ordinary care was a question for the jury to examine in determining whether the plaintiff had been contributorily negligent. Kirby, 199 Ark. at 868.
Finally, in Coca-Cola Bottling Co. v. Shipp, supra, this court held, on rehearing the case, that the "better rule"was to let a jury decide whether a plaintiff had been contributorily negligent. Relying on Murphy v. Hawthorne, 117 Or. 319, 244 P. 29 (1926), the Shipp court wrote as follows:
While some courts have announced a hard and fixed rule that it is negligent to drive an automobile at such rate of speed that it cannot be stopped within the range of the driver's vision, . . . we think it improper to do so. . . . After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? . . . Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put this dusty gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might wel
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