City of Las Vegas v. Schultz
| Decision Date | 05 November 1938 |
| Docket Number | 3230. |
| Citation | 83 P.2d 1040,59 Nev. 1 |
| Parties | CITY OF LAS VEGAS v. SCHULTZ. |
| Court | Nevada Supreme Court |
Appeal from Eighth Judicial District Court, Clark County; Wm. E Orr, Judge.
Action by Fred Schultz against the City of Las Vegas to recover for injuries sustained when an automobile in which plaintiff was riding collided with a load of poles which had been abandoned and left on a street in the defendant city. Judgment for plaintiff for $4,743, and defendant appeals.
Affirmed.
Harry H. Austin, of Las Vegas, for appellant.
Roland H. Wiley, Leo A. McNamee, and Frank McNamee, Jr., all of Las Vegas, for respondent.
About 7:50 o'clock on the evening of July 6th, 1934 respondent, plaintiff in the lower court, while riding with Dave Holland in the latter's automobile on Clark Avenue in the City of Las Vegas, was seriously injured when the car collided with a load of poles which had been abandoned and left on said street about four o'clock in the afternoon of said day. Claiming that his injuries were the result of the city's negligence, respondent, after the rejection of his claim for compensation, filed suit in the Eighth Judicial District Court, Clark County, for $75,000 damages. After a trial by the court, without a jury, judgment was rendered in favor of plaintiff and against defendant (appellant) in the sum of $4,743. Defendant's motion for a new trial was denied, and it has appealed to this court from said order denying a new trial and from said judgment and all intermediate rulings, proceedings and orders affecting the rights of defendant and specified by it in the record and bill of exceptions.
In the trial court defendant demurred to plaintiff's fourth amended complaint upon the ground that it failed to state facts sufficient to constitute a cause of action, and appellant's first assignment of error on this appeal is the action of the district court in overruling said demurrer. Appellant specified the following particulars in which, as it contends, said complaint is fatally defectivé: e: It leaves an inference that the injuries were due to contributory negligence on the part of plaintiff; it shows that the obstruction was in an outlying district near the open country highway; it alleges that all of the persons who had passed the abandoned load of poles prior to the accident, observed the said obstruction; it does not allege that at the time the accident occurred, there were any other cars or traffic at the place where it happened; there is no allegation that the highway was curved or not level, or that there was anything to distract the attention of plaintiff or any one in the automobile so as to prevent their seeing the obstruction; said complaint does not allege who was driving the car; no fact is alleged exculpating plaintiff from the inference that the proximate cause of the accident was due to his own negligence; it is not alleged that it was dark at the time of the collision, or that it was cloudy or stormy or raining, or that there was anything to prevent one's seeing the obstruction; there is no allegation showing why the accident happened; it is not alleged that plaintiff knew of the custom of the police department and the street department to remove obstructions from the streets or highways; it is not alleged that plaintiff did not know the obstruction was there; the complaint shows that it was only one hour and twenty minutes from the time the acting night chief of police received actual notice of the obstruction, until the accident happened; it is not alleged whether the superintendent of streets was on or off duty when notified regarding the obstruction by said acting police chief, at 6:30 P. M.; the complaint is silent as to whether there was any duty resting upon the superintendent of streets when off duty and at home, to remove obstructions, but it does show that notice came to him at his home, which was one and one-half miles from said obstruction; the complaint shows on its face that, after notice was given to the city, sufficient time had not elapsed to charge it with negligence.
Following is a summary of those portions of the complaint having some bearing upon appellant's contention that said complaint does not state facts sufficient to constitute a cause of action: Clark Avenue is the main traveled thoroughfare leading into the City of Las Vegas from the northern section of Nevada. The frequency of motor vehicle traffic is greatly increased both night and day during the months of June and July, by reason of the fact that numerous persons living in the more congested area of said city travel, during those months, to and from Lorenzi's Park, a place of amusement and recreation located within the confines of said city. By the charter and certain ordinances of said city (specified and identified in said complaint) it was made the duty of its officers and employees of the street and police departments to remove obstructions from said street at the place where the accident happened, or otherwise guard against the same as an element of danger to persons lawfully traveling thereon. During the evening, between sunset and ordinary bed time of the 6th day of July, 1934, an obstruction of an unusually dangerous character, consisting of a wagon or trailer loaded with poles approximately 20 feet in length, was left to remain on said street, unoccupied and unattended, by some third person, from about two o'clock P. M. until eight o'clock P. M. of said day, without any lights, signals or other suitable warning to persons traveling along said street in the nighttime. Among the many persons who, traveling in motor vehicles in each direction, passed and observed said obstruction were officers and employees of the police and street department of the defendant city. At the time of the accident, and for many years prior thereto, it has been the custom and usage and was the duty of the policemen of said city immediately to remove such obstructions or appropriately guard the same so as to warn and protect persons traveling along said street, or to report the existence of such obstructions to the chief of police, who would in turn report to the superintendent of streets; or to report the existence of such obstructions directly to the superintendent of streets. It had also been the custom and usage of the officers and employees of the street department, when observing such obstructions on any of the streets and highways of said city, immediately to remove such obstructions or appropriately guard the same or report their existence directly to the superintendent of streets. Actual notice of the existence of said obstruction was given to the acting night chief of police, who communicated knowledge thereof to the superintendent of streets prior to sunset, to wit, at approximately 6:30 P. M.; whereas the accident did not occur until about 7:50 P.M. The place where the superintendent of streets received notice, as aforesaid, was approximately one and one-half miles from the location of said obstruction. More than a reasonable time elapsed within which defendant city could have provided, by the exercise of ordinary care and diligence, suitable light signals or used other proper means to warn and thus prevent accident and injury to persons traveling said street by motor vehicle in the nighttime, and particularly injuries to plaintiff. During the nighttime of said day, about 7:50 P.M., an automobile in which plaintiff was riding along said street, without any negligence on his part, collided with said obstruction with the result that plaintiff sustained serious, painful and permanent injuries (fully described in the complaint). The negligence of the city was the proximate cause of the injuries and damage sustained by the plaintiff. In a second count of the complaint it was further alleged that the defendant, knowing of the existence of said defective obstruction, undertook to eliminate the same and also elected to place suitable lights as warning signals at or near said obstruction, but failed to use ordinary care and diligence in so doing. "That this cause of action is based upon the fact that defendant negligently permitted the same to remain upon said street and negligently failed to guard against the same as an element of danger after having knowledge of the existence thereof and after having elected and undertaken to remove the same or guard against the same; and upon the further reason that Defendant carelessly and negligently attempted and failed to place at, near, on or about said obstruction red lights or to use other means properly to warn and protect persons traveling upon said street after knowledge of the existence of said obstruction and after having elected and undertaken to do so."
In Nevada, as in the majority of jurisdictions, where the gist of an action is negligence, plaintiff need not negative contributory negligence on his part. Generally, contributory negligence is regarded as a matter of defense to be pleaded by the defendant. Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141; Smith v. Smith-Peterson Co., 56 Nev. 79, 45 P.2d 785, 48 P.2d 760, 100 A.L.R. 440; 45 C.J. 1104-1105; 20 R.C.L. 183, 184; 29 C.J. 710, 711; 43 C.J. pp. 1231-1232; 13 R.C.L. pp. 498, 499, Sec. 409. In the instant case the complaint does not, in our opinion, disclose on its face that plaintiff was guilty of contributory negligence, or that his acts were the proximate cause of his injury. Furthermore, the complaint expressly alleges that the accident occurred without any negligence on the part of plaintiff.
In actions of this kind the complaint must show a duty owing from the defendant to the plaintiff, a breach of that duty that the plaintiff was injured and damaged; and that defendant's negligence...
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