City of Reno v. Van Ermen
| Decision Date | 07 October 1963 |
| Docket Number | No. 4612,4612 |
| Citation | 79 Nev. 369,385 P.2d 345 |
| Parties | The CITY OF RENO, a municipal corporation, Appellant, v. J. W. VAN ERMEN, individually and as Guardian Ad Litem for Joan Van Ermen, a minor, Respondent. |
| Court | Nevada Supreme Court |
Vargas, Dillon & Bartlett and Alex. A. Garroway, Reno, for appellant.
Peter Echeverria, Reno, for respondent.
In this case the City is charged with maintaining in a 'negligent, reckless and careless manner' Airport Road in the City of Reno in that it erected and raised a barricade on the road without adequate warnings, thereby creating a hazard to vehicles; that on April 9, 1960, as a result of such negligence, a Mercury sedan driven by Gary Cooper, in which Joan Van Ermen was a passenger, did strike said barrier with resulting injuries to Joan Van Ermen.
The case was tried before a jury. After all the evidence had been introduced by both sides the City moved for a directed verdict, which motion was denied. The case was submitted to the jury which brought in a verdict for the City. Judgment was entered upon said verdict. Thereafter plaintiff's motion for a new trial was granted. The trial court's formal findings of fact recite:
1. There was a manifest disregard by the jury of the court's instructions upon the law.
2. The evidence is insufficient to justify the verdict and clearly preponderates against the verdict.
3. The verdict is against the law.
4. That upon all of the facts and circumstances of this case, the court, after hearing the trial, reviewing the exhibits and considering all of the evidence is clearly satisfied that an injustice has been done and that to allow the verdict and judgment to stand will result in a miscarriage of justice. 1
Thereupon, the lower court set aside the verdict, vacated the judgment, and ordered a new trial.
Appeal is from the order granting the motion to set aside the verdict and judgment and for new trial.
On this appeal we are in no manner concerned with the medical testimony or the extent of the plaintiff's injuries. We are concerned only with evidence pertaining to the negligence of the City and the proximate cause of the accident. A review of the entire evidence pertaining to negligence and proximate cause is therefore required.
The following evidence is undisputed:
At about 7:15 P.M., on April 9, 1960, Gary Cooper, age 22, and Joan Van Ermen, age 17, left Joan's home and drove in his Mercury easterly on Airport Road from Kietzke Lane toward the airport area and crashed into the earth and asphalt debris barrier, going through and over it, coming to a stop about twenty feet away. He was killed and Joan was severely injured. In hitting and going over the barrier the vehicle caused a break in the center of the barrier and scattered debris approximately 100 feet eastward. Joan remembered nothing of the accident. Prior to September 26, 1959 the Reno Municipal Airport buildings were located at the eastern end of Airport Road where the road terminated and did not connect with any other public thoroughfare. On September 26, 1959 the buildings were abandoned because new airport terminal facilities north of the old site were put to use and the old buildings razed in November 1959. Thereafter there was no need for continued use of that end of Airport Road. Nevertheless, automobiles frequently were driven to the end of the road and onto the landing field creating a hazard to planes. In an endeavor to stop such practice, wooden portable barriers were placed across the road and a heavy wire cable joined to them. Burning smudge pots were placed nearby. These were not effective to stop the practice of automobiles going upon the landing field. In March 1960 a permanent barrier was erected consisting of dirt and chunks of asphalt paving. The barrier was 30 feet long all the way across the road, 10 feet thick at the bottom, about 6 feet high, and was located some 700 feet west from the end of the road which terminated at the edge of the landing field. Three pieces of pipe were inserted vertically in the barrier anchored in concrete, one at each end and the third in the center, to each of which was attached a metal reflector with an additional bullseye on the center pipe. The reflectors were orange or amber in color and could be seen 300 to 500 feet away. The majority of installations for dead-end streets in Reno were the same as that on Airport Road. Beyond the barrier eastward there were some lights on the landing field runways, both to the left and right of the reflectors on the barrier. East of Kietzke Lane and some distance west of the barrier the City had erected at different locations two road signs of standard size, one stating 'NOT A THROUGH STREET,' and the other, 'DEAD END STREET.' The road also was visibly posted with at least one 35-mile per hour speed limit sign, which was the speed limit in effect on that road at that time. Joan Van Ermen knew at the time of the accident that the Airport Road had a maximum 35-mile per hour speed limit and also knew that the Airport Road was not a through street.
Joe Hicks, called as an adverse witness on behalf of the plaintiff, testified that he was the Airport Manager for the City of Reno; that after dark, one could see the posted signs at a distance of 200 feet without difficulty, and that the reflectors on the metal pipes, as well as the red bullseye on the center pipe, would loom up in the headlights of an oncoming car when it was 400 to 500 feet away. In driving down Airport Road, Hicks testified he had no difficulty in distinguishing the reflectors on the barricade from the runway lights on the airfield.
Robert E. Callahan, a witness for the plaintiff, testified that he was Street Supervisor for the City of Reno at the time of the accident; that as one drives down Airport Road the runway lights on the north-south runway would be 35 feet to the right and 90 feet to the left from the center line of an elongation of Airport Road, and would not face the road toward the west.
Roger Newton, a witness for the plaintiff, testified that he visited the scene of the accident on April 10, 1960, at 10:00 P.M., and as he traveled easterly on Airport Road he could see the clearance lights on the runway approximately from where Neil Road entered Airport Road; that the reflecting lights on the iron posts that were on the barricade appeared to be on approximately a horizontal line with the runway lights; that he could observe three red lights at the easterly portion of the runway; that he could see the sign, 'NOT A THROUGH STREET,' 200 feet west of it; that it was clearly visible; and that he could see the 'DEAD END' street sign at a distance of 200 feet. He was specifically watching for the reflectors on the barricade and saw them 300 to 350 feet away; that when he got approximately 300 feet from the barrier he could clearly see the position of the runway lights and the reflection of the lights of the barrier, but further than 300 feet he had difficulty determining the relationship between the lights; and that the runway lights were 4,000 to 5,000 feet beyond the barrier.
Margie Warner, a witness on behalf of plaintiff, testified that about two weeks prior to April 9, 1060, at dusk, she went east on Airport Road, and as she was driving along without her lights on, pointing out to her passenger where the airport buildings had been, 'all of a sudden this barricade was in front of me.' She didn't notice any warning signs as she approached. She was driving 15 miles an hour and was within 15 feet of the barrier before she saw it.
Carl Harris, a witness on behalf of the plaintiff, testified that when he heard of the accident he was at the Airport Bar, and proceeded to Airport Road, going probably 45 miles an hour. He didn't recall seeing any warning signs. The first lights he saw were the tail lights of the car involved in the accident. They were out, but his lights caused a reflection. He did not see the reflectors on the barricade until he came to a halt. He received no warning from the reflectors on the posts at all because He applied his brakes. His car skidded sideways into a sudden stop. There were lights on the immediate edge of the runway which he could see as he went out on Airport Road. He was 70 to 80 feet from the barricade when he saw it and applied his brakes.
After the plaintiff rested, the defendant without objection was permitted to file an amendment to his answer which set out the following two sections of the Reno Municipal Code.
Section 10-56 provides:
Section 10-57 provides:
'Restrictions as to Speed.
'(a) Basic Rule. No person shall drive a vehicle upon a street or highway in violation of the provisions of Section 10-56 of this Chapter.
'(b) Indication of Maximum Speeds. No person shall drive a vehicle upon a street or highway in excess of that indicated as follows:
'(4) 35 miles per hour.
'(4a) Upon any street or highway marked and signed by the Chief of Police, with the approval of the City Council, when the marking and signing indicate the allowance of such speed.'
George Barnes, a witness for the...
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