Armstrong v. Onufrock, 4163

Decision Date25 June 1959
Docket NumberNo. 4163,4163
Citation76 A.L.R.2d 946,75 Nev. 342,341 P.2d 105
Parties, 76 A.L.R.2d 946 George James ARMSTRONG, Appellant, v. Irene Elvira ONUFROCK and Duane William Onufrock, by and through his Guardian ad litem, Irene Elvira Onufrock, Respondents.
CourtNevada Supreme Court

Vargas, Dillon & Bartlett and Alex A. Garroway, Reno, for appellant.

Peter Echeverria and John Sanchez, Reno, for respondents.

McNAMEE, Justice.

Respondents, plaintiffs below, recovered damages in this action resultin from an accident in which respondent Duane William Onufrock, a minor of the age of 14 years, sustained personal injuries when the motor scooter he was operating collided with an automobile operated by appellant. Respondent Irene Elvira Onufrock, the mother of Duane, has joined as plaintiff to recover her loss of wages resulting from said accident. The trial court entered final judgment on the verdict and denied appellant's motion for a new trial. Appeal is from the judgment and from the order denying the motion for new trial.

The accident happened at the intersection of California Avenue and Booth Street in the City of Reno on October 12, 1956 at 7 o'clock A.M. Armstrong was proceeding eastwardly on California Avenue in his Ford automobile. It was a cold morning and prior to starting his automobile he had cleaned the frost off a portion of his windshield on the driver's side with a small stick. The two streets form an imperfect Y, the base being the west portion of California Avenue. Both streets are popular thoroughfares and many vehicles pass in both directions, and both Armstrong and Duane knew that half of those vehicles going east on California Avenue turn left onto Booth Street.

There was evidence that the portion of the windshield Armstrong had cleaned had fogged over, obscuring his forward vision. As he approached the intersection, he put out his hand for a left turn. At this time Duane Onufrock was proceeding westerly on California Avenue which has a downhill grade as it enters the intersection from the east. The collision occurred on Booth Street a few feet beyond the north line of California Avenue. Armstrong neither saw nor heard the approaching motor scooter prior to the accident. Duane Onufrock sustained severe injuries, was knocked unconscious, and has no recollection of the events before or after the impact. An eyewitness testified that as the two vehicles approached each other Duane dropped his foot either to or close to the pavement and in a matter of a split second thereafter the collision occurred.

The trial court concluded that the doctrine of last clear chance was involved and instructed the jury with respect to its essential elements and their application to the evidence presented. Appellant made no objection to such instructions. After considering the evidence and the instructions of the court the jury concluded that although both Duane and Armstrong were negligent, Armstrong had the last clear chance to avoid the accident. We feel that the jury was warranted in reaching such a conclusion.

There was evidence that both vehicles approached the intersection at an excessive rate of speed; that Armstrong while his forward vision was obscured by the frost on his windshield made a left turn in violation of a municipal ordinance which required him to yield the right of way to the approaching vehicle; that Armstrong in the exercise of ordinary care, could have discovered the imminent peril of Duane in time to avoid the accident by stopping or by diminishing his speed and should have realized that Duane could not extricate himself from such peril. Failing in this duty, he is liable under the doctrine of last clear chance, for the natural consequences of his acts. Styris v. Folk, 62 Nev. 208, 209, 139 P.2d 614, 146 P.2d 782; Deiss v. Southern Pac. Co., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332.

As a separate cause of action, Duane's mother sued Armstrong to recover lost wages, alleging that as a result of the said negligence of Armstrong she was compelled to resign her employment to care for her son to her damage in the sum of $1,500.

Evidence was received showing that the said mother quit her $56 a week job on October 12, 1956, the day of the accident, to care for her son, and that she continued such nursing care until May 1957. She was on 24-hour duty during this period, except for occasional relief from her husband. Had she continued her work and employed a nurse to care for her son the cost would have been $14 a day for an eight-hour shift.

The jury in its verdict included an item of $1,000 for the mother.

While nursing charges are a proper element of special damages in an action of this nature, the basis of liability is not the loss of wages resulting from the change of occupation, but rather the reasonable value of the nursing services. Seedborg v. Lakewood Gardens Civic Ass'n, 105 Cal.App.2d 449, 233 P.2d 943; 67 C.J.S. Parent and Child § 55, pp. 760-761.

Although the measure of damages as defined by the court to the jury was clearly erroneous, the error or errors were not prejudicial, because it is apparent that the nursing services his mother performed on his behalf were of a value of at least the sum of $1,000.

Appellant contends that this item for nursing services, while a proper item of special damages when claimed by the injured person, is not a proper subject of a direct claim against the wrongdoer by the one performing the services.

Where the injured person is a minor, however, and costs of...

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11 cases
  • Wright v. Standard Oil Company, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 6, 1973
    ...cases furnish varying degress of support for our holding: Bush v. Bush, 95 N.J.Super. 368, 231 A.2d 245 (Law Div.1967); Armstrong v. Onufrock, 341 P.2d 105 (Nev., 1959); Winnick v. Kupperman, 29 A.D.2d 261, 287 N.Y.S.2d 329 (1968); Skollingsberg v. Brookover, 484 P.2d 1177 (Utah 22 Our hold......
  • Weaks v. Mounter
    • United States
    • Nevada Supreme Court
    • February 25, 1972
    ...v. Burkham, 63 Nev. 75, 83, 165 P.2d 161 (1946); Pardini v. City of Reno, 50 Nev. 392, 404, 263 P. 768 (1928); Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105 (1959); cf. NRS 41.080 and NRS We agree that the trial court was correct in recognizing two separate claims. Reversed and remanded.......
  • Beattie v. Thomas
    • United States
    • Nevada Supreme Court
    • August 31, 1983
    ...of the questions on appeal. See Driscoll v. Erreguible, 87 Nev. 97, 102, 482 P.2d 291, 294 (1971). In the case of Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105 (1959), the respondents had required the appellant to include in the record on appeal trial testimony that was not relevant to a......
  • Frances v. Plaza Pacific Equities, Inc.
    • United States
    • Nevada Supreme Court
    • February 23, 1993
    ...of his care have been met by a parent, a direct right of action by such parent against the wrongdoer exists." Armstrong v. Onufrock, 75 Nev. 342, 347, 341 P.2d 105, 107 (1959) (citing NRS 12.080). Although the child's condition was the source of the medical expenses, Linda, as the adult mot......
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