Los Angeles & S.L.R. Co. v. Umbaugh

• Decision Date: 04 March 1942
• Docket Number: 3339.
• Citation: 123 P.2d 224,61 Nev. 214
• Parties: LOS ANGELES & S. L. R. CO. et al. v. UMBAUGH.
• Court: Nevada Supreme Court

123 P.2d 224

61 Nev. 214

LOS ANGELES & S. L. R. CO. et al. v. UMBAUGH.

No. 3339.

Supreme Court of Nevada

March 4, 1942

Rehearing Denied April 7, 1942.

Appeal from Eighth Judicial District Court, Clark County; Roger Foley, Judge.

Action by Edna L. Umbaugh against the Los Angeles & Salt Lake Railroad Company and others to recover damages for the death of Willa Umbaugh, deceased. From a judgment for plaintiff and from an order denying a motion for new trial, the named defendant and another appeal, and plaintiff assigns cross error.

Judgment and order affirmed.

Leo A McNamee and Frank McNamee, Jr., both of Las Vegas, and Malcolm Davis, of Los Angeles, Cal., for appellants.

A. W Ham and Ryland G. Taylor, both of Las Vegas, for respondent.

DUCKER Chief Justice.

The plaintiff, respondent here, brought this action to recover damages for the death of her adopted daughter, Willa Umbaugh, who was killed on the 10th day of November, 1938, in a collision between the truck in which she was riding, and a passenger train alleged to have been operated by the said railroad company. The truck was being driven by plaintiff's husband, father of the deceased child by adoption, who was also killed. The child was eleven years of age.

The collision occurred at the Charleston Boulevard in the City of Las Vegas, within the yard limits of the railroad company. The amended complaint contains two charges of negligence against the railroad company; (1) that it caused its trains to cross said Boulevard at a great and negligent rate of speed of more than fifty miles per hour and without sounding any bell or whistle, and (2) that it failed to maintain at said crossing any automatic signalling device, flagman, gate or other signal or warning of an approaching train. The answer set up two defenses; (1) that defendants were guilty of no negligence, and (2) that the deceased, Willa Umbaugh, was guilty of contributory negligence. A jury trial resulted in a verdict of $25,000 against all defendants, who, in addition to said railroad company, were Ralph T. Salt and Ben VanBuren, engineer and fireman respectively, on the train at the time of the accident. A motion for a new trial by all the defendants was granted as to the fireman unconditionally, but as to the railroad company and engineer it was ordered that, if on or before a specified date plaintiff shall serve upon them and file a remittitur in the amount of $16,985, a new trial is denied and the verdict for the residue, to-wit, $8,015, shall stand as the verdict on which a judgment will be entered; otherwise they will be granted a new trial.

Within the time limited plaintiff filed with the clerk of the court, her remittitur, remitting of the judgment theretofore filed and recorded, the sum of $16,985, which resulted in the denial of the motion for a new trial as to the railroad company, and the engineer. Their appeal is from the order and judgment. The railroad company will be generally referred to as such.

The home of plaintiff, husband and child, was near the southwesterly outskirts of Las Vegas and they usually came into the city in the truck, travelling easterly over the Charleston Boulevard, which crosses the railroad company's main track at grade. The father and child were travelling the usual route when killed. It was about 7:35 a. m. and he was on his way to his place of business in Las Vegas, intending to leave the daughter at school. In the vicinity of the crossing the railroad track is a straight track extending north and south. The grade of the track is downward towards the city, a fall from the south to north of 4.39 feet in 2,500 feet, .169 per cent, and constant both ways from the crossing. There are no obstructions at or near the crossing. One approaching it on the Boulevard from the west can see some distance along the railroad track to the south. At the time of the accident there was no automobile signalling device maintained at the crossing, nor wig-wag, nor flagman, nor gate. The engineer testified that he was acquainted with these conditions. The train was two hours and thirty-seven minutes late on this morning.

A number of errors are assigned within the general one that the court erred in overruling defendants' motion for a new trial. The first two, which can be considered together, go to the action of the court in overruling their objections to two hypothetical questions propounded to plaintiff's witness, Ralph D. Baker, and in denying their motion to strike his answers to these hypothetical questions.

The questions were as follows: (1) "Doctor, assuming that a train is moving upon a straight track; that the rails are dry; that the fall or downgrade is 4.39 feet to the twenty-five hundred feet, or a down-grade of .169 per cent, and the train is composed of the following: one engine, one tender, two baggage cars, one baggage dormitory car, two dining cars, one observation car and five standard Pullman cars; that the engine had four driving wheels on each side, or eight driving wheels all told; that the tender had four wheels on each side or eight wheels all told; that the train was equipped with standard Westinghouse air brakes; that the entire braking equipment was in good order for the entire train; that the entire train, including the engine, tender and all cars as above, weighed 2,252,381 pounds; that the train was moving at forty miles per hour; that the engineer of the train applied full service or full braking power to the train, can you determine approximately what distance would be required in which to stop the train?"

(2) "Doctor, Assuming a train made up and travelling as indicated in the immediately preceding hypothetical question, and the engineer applied full braking service, and the train travels after such full braking service is applied, a distance of 2,255 feet, can you tell the proximate speed of the train at the time of the application of the brakes?"

The contention is that certain factors were omitted from the questions which were essential to a determination of the speed of the train at the time the brakes were applied. The principal fact stressed as missing, was the pounds per square inch of air pressure applied to the brakes at the time. The witness testified that he could answer the question by assuming that fact from his knowledge of dynamics, and explained that he would take experimental values derived from experiments that had been performed on Westinghouse brakes and other braking systems derived from hand books published on the subject. He explained also that these experimental values were as to coefficient of friction, wind resistance and grade resistance. He explained further that in making his deductions from the experiments he would take the minimum of braking efficiency of the train, and that the statement in the question that the entire braking equipment was in good order for the entire train, would cover that particular point. The engineer had testified that the braking equipment on the train was adequate and in good order.

We think the witness was competent to answer the questions. He was an expert in the field of mechanical engineering. On examination his qualifications were stated as follows: He spent two years in Rex College, which is a two-year college, and then spent three years at the University of Utah, and received the degree of Bachelor of Science in Mechanical Engineering. After graduating he spent a year in the University and then went to the University of Kansas as an instructor in mechanical engineering. While instructing at that institution he took courses in mathematics and advanced mechanical engineering, and received the Masters Degree in Mechanical Engineering in 1931. After six years at the University of Kansas he went to California Institute of Technology where he spent three years in advanced study in aerodynamics and applied elasticity and hydraulics, and received the degree of Doctor of Philosophy in 1938. At the time of giving his testimony in this case, he was a professor in the University of Utah and had been teaching the particular subject of mechanical and aeronautical engineering since 1938. It will be seen that his qualifications as an expert in the field of mechanical arts were not of a questionable character, but very high. The field from which the witness formulated his opinion was above mere hypothetical conjecture. His technical knowledge in respect to the subject was reasonably calculated to enable him to give a considered appraisal to the values established by other recognized experts by actual experiments in answering the questions propounded. "The judgment of a skilled witness testifying as an expert may be based, in part at least, upon the results of experiments made by himself or others." 3 Chamberlayne Modern Law of Evidence, § 2381a.

After all, the witness was not called upon to answer with the exactness of a mathematical computation. The question was not so absolute. It called merely for an approximation and was so recognized by the witness, who stated that if he was going to make an accurate calculation it would have to be based upon an experiment where the conditions were the same, but that he could make an approximation.

The data from which the witness concluded as to the air pressure on the brakes, affect the weight of the testimony, and not its competency or admissibility.

Counsel for defendants insist that the only evidence which would be admissible on the point in question would be evidence as to an experiment under the same, or substantially similar conditions to the case at bar. In other words, plaintiff would have to procure the same train, or one like it, run it over the same track, or, if permission could not be obtained to do this, which is quite likely, build a...