Babcock & Wilcox Co. v. Nolton

• Decision Date: 05 October 1937
• Docket Number: 3190.
• Citation: 71 P.2d 1051,58 Nev. 133
• Parties: BABCOCK & WILCOX CO. v. NOLTON et ux.
• Court: Nevada Supreme Court

71 P.2d 1051

58 Nev. 133

BABCOCK & WILCOX CO. v. NOLTON et ux.

No. 3190.

Supreme Court of Nevada

October 5, 1937

Appeal from District Court, Eighth Judicial District, Clark County Wm. E. Orr, Judge.

Action by Chester D. Nolton and another against the Babcock & Wilcox Company and others. From an adverse judgment, the said company appeals.

Affirmed.park in such space and that owner knew thereof sustained finding that occupant and her husband were "licensees" as against contention that they were trespassers because automobile was not parked in space reserved for visitors.

Leo A McNamee and Frank McNammee, Jr., both of Las Vegas, for appellant.

Ham & Taylor and V. Gray Gubler, all of Las Vegas, for respondents.

DUCKER Justice.

The appellant seeks a reversal of a judgment of the district court for $15,000 assessed against it by the verdict of the jury as compensation for personal injuries alleged to have been sustained by the respondent Marguerite Nolton on premises controlled by the company and in consequence of its negligence.

On January 18, 1935, and for some time prior thereto, appellant was a corporation engaged in the manufacture and fabrication of steel piping and tubing near Boulder City, and maintained an office adjacent to its plant. In front of its office and to the southward, separated by a terrace, it maintained an automobile parking space. The area of land embraced in this space was roughly in the shape of a letter "V" with the upper part abutting the terrace and extending a short distance to the left, or in a westerly direction. A small stairway directly in front of the center of the building extended from the parking space to the top of the terrace. This space was reached by automobiles over a private road about 200 yards in length, branching from the Boulder Dam Highway and entering the parking area from the south, at the tip of the "V." On the terrace immediately to the right and east of the stairway leading to the top of it was a sign which read: "Company Cars Only." Immediately to the west of the stairway and on the terrace was a sign which read: "Government Cars Only," and about 20 feet west of that on the terrace was a sign which read: "Company Cars Only." On the west side of the private roadway where it entered the area was a sign which read: "Visitors Parking."

A driveway extended from the upper easterly part of the parking space north-easterly around the office building to the fabricating plant, a distance of about 200 feet. A water hydrant was situated on this driveway halfway between the office and the fabricating plant. At the west end of the building which housed the plant a stair-way on the outside led from the ground to a door above opening into a landing provided by appellant as a visitor's gallery for the convenience of tourists and other sightseers from which they could view the work going on below. At the foot of this stairway was a sign which read: "Visitor's Gallery."

The fashioning of the huge pipes and tubes for the tunnels of the Boulder Dam Project was a work of great interest and attracted many visitors to the plant. The government guides and others included this plant in their itinerary.

On January 18, 1935, respondents, traveling in their automobile with a government guide, came from the Boulder Dam Highway over the private road and entered the parking space for the purpose of visiting the fabricating plant. At the direction of the guide respondent Nolton, who was driving, parked his car at a point immediately to the right of the terrace stairway and about 40 feet south of it. Nolton and his guide proceeded to the visitor's gallery. Mrs. Nolton remained in the automobile. While they were at the plant Wesley B. Jarvis, an employee of appellant, drove a Ford truck in from the Boulder Dam Highway over the private road to the water hydrant. After replenishing the radiator, he backed the truck, down the highway around into the parking space against respondents' automobile. The impact damaged the door and spring of the latter vehicle and injured Mrs. Nolton.

Appellant contends that all of the parking space dominated by the signs on the terrace was a restricted area from which automobiles carrying visitors were excluded, and that consequently respondents were trespassers to whom appellant owed no duty, except to refrain from willfully or wantonly injuring them; and that the evidence shows that such duty was not violated.

Appellant, in addition to assigning as error insufficiency of the evidence and excessive damages, specifies error as to a number of instructions given and refused. The contention of error as to the instructions was practically abandoned, except as to one which will be discussed later. In their reply brief counsel for appellant make no reply to the defense made by counsel for respondents in their brief as to the instructions. Moreover, in the oral argument in this court, the former stated there was little difficulty with the instructions, and that their main contention was that the evidence is insufficient to sustain the verdict and judgment.

We are of the opinion that the jury was fully and fairly instructed on the law of the case.

It is insisted by appellant that the sign at the portal of the parking space on the south, reading, "Visitors Parking," carried an arrow pointing to the left of the signs on the terrace, and by respondents that this sign was so placed as to invite visitors to any part of the parking space. However, we need not determine the dispute. Conceding that the parking space before the office building clear to the southern extent of such space was a restricted area as noticed by the signs on the terrace, we think there was sufficient evidence to entitle respondents to recover as licensees. The jury were correctly instructed as to this phase of the case, as follows:

"A license is distinguished from an invitation, in that a licensee is on the premises by sufferance only and not by virtue of any business or contractual relation with, or any enticement, allurement, or inducement to enter held out to him by the owner or occupant, but merely his own interest and for his own purposes, benefit, convenience or pleasure."

"In order that a person may have the status of a licensee the owner or person in charge of the premises must have knowledge of his entry or his presence thereon, or of a customary use of the particular portion of the property used for the purpose for which such person is using it."

"You are instructed that with respect to a licensee, the owner or person in charge of property owes him no duty except to refrain from willfully or wantonly injuring him, or to use care to avoid injuring him after his presence is, or under the circumstances, should have been discovered."

"Even active negligence, causing injury to a licensee, does not create a liability unless the person guilty of such active negligence, or his employer was, or in the exercise of a reasonable care should have been aware of the presence of the licensee in a place where he might be injured."

"*** If you find from a preponderance of the evidence that the portions of this space so designated for the use of company cars or employees' cars was habitually used by visitors to park their cars on, without objection by the defendant, such customary or habitual use without objection may give rise to an implication of consent to such use so that the users may have the status of licensees instead of trespassers."

Respondents' evidence tends to prove such habitual or customary use by visitors in parking their cars in the space indicated by the signs on the terrace as a restricted area.

Respondent Nolton testified that at Boulder City through arrangements with the city manager he was furnished with a government guide, and that his car was parked in the place where the accident occurred by the direction of that guide.

Jerry George, a witness for respondents, testified that in the month of January, 1935, he was a bus agent for the Union Pacific Company driving from Las Vegas to Boulder City and other points, and had been in that employment for some time during the year 1934; that his employment in that capacity took him to Boulder City sometimes twice a day for a week and then again weekly. On these trips he always drove into the parking space, as the fabrication plant was one of the attractive spots. He would park his bus in front of the office building and the passengers would walk to the plant. "Usually" he said, "the busses, because of their length, we would try to back up beyond to the left of the building as you enter," but it was his custom to park anywhere upon that area where there was an open parking space. He further testified that on these trips he had seen many automobiles of visitors on the area that he parked upon. "I have seen so many in there," he said, "that it was rather hard to find a place to park."

"Q. In front of the building did you see them? A. Yes.

"Q. Would you say they extended at times out to the road leading down to the fabricating plant? A. Well, I have seen them parked there, they would have to be parked double in order to extend out to the road, but I have seen that. I have seen it full.

"Q. Parked clear to the road? A. Yes."

This condition was mostly on week-ends and holidays, he stated.

W. H. Trimble was a witness for respondents. He was chief of police in Boulder City, and chief ranger. He had been in such employment for about two years prior to the accident. His duties had to do with traffic in and about Boulder City, around the dam and areas, to prevent congestion, to enforce speed laws and regulate parking. He was familiar with the parking area in front of appellant's office.

"Q. Did that area extend up to the...