Crosman v. Southern Pac. Co.

• Decision Date: 24 January 1921
• Docket Number: 2438.
• Citation: 194 P. 839,44 Nev. 286
• Parties: CROSMAN v. SOUTHERN PAC. CO.
• Court: Nevada Supreme Court

194 P. 839

44 Nev. 286

CROSMAN v. SOUTHERN PAC. CO.

No. 2438.

Supreme Court of Nevada

January 24, 1921

Appeal from District Court, Washoe County; Edward F. Lunsford Judge.

Action by Fred Crosman against the Southern Pacific Company. From a judgment granting nonsuit, plaintiff appeals. Affirmed.

Sardis Summerfield, J. B. Dixon, and A. Grant Miller, all of Reno for appellant.

Brown & Belford, of Reno, for respondent.

DUCKER J.

The appellant brought this action against the respondent to recover a judgment for damages for personal injuries alleged to have been sustained by him through the negligence of the company. The respondent denied negligence and set up the contributory negligence of the appellant. The evidence showed substantially the following facts: The respondent is a railway corporation and for many years has maintained and operated a railroad across the state of Nevada and through the state of California. The city of Reno is situated in Nevada about three miles westerly from Sparks, on respondent's right of way. Sparks is a division point on the railroad in Nevada, and Truckee was a division point in California when appellant sustained his injuries. At the time of the accident which resulted in his injuries, and which occurred on the night of the 18th of February, 1914, Crosman the appellant, was, and had been for nearly three years prior thereto, employed by the Postal Telegraph Cable Company as a lineman. His duties involved the repair and maintenance of this company's telegraph lines between Lovelock and Floriston. Floriston is a station in California, and Lovelock a city in Nevada on the Southern Pacific Company's right of way, some distance easterly from the city of Sparks. Between these points the lines of the telegraph company extend for the most part along the right of way of the Southern Pacific Company.

On the 31st day of January, 1911, the telegraph company obtained permission from the respondent for the former's employees, engaged in repair and maintenance service, to operate velocipede cars on the latter's tracks between Sparks and Wells. This permit is in the form of an agreement executed by the two companies. It recites that it was given at the request of the telegraph company without liability on the part of the railroad company for negligence, and provides:

"That the party of the first part (railroad company) hereby consents to, and with, the party of the second part (telegraph company) that the employees of said second party engaged in the repair and maintenance of the lines of the Postal Telegraph Cable Company, between Sparks, Nevada, and Wells, Nevada, may at their own sole risk, as gratuitous licensees, operate velocipede cars on the tracks of the Southern Pacific Company between Sparks, Nevada, and Wells, Nevada, it being expressly understood, however, that said employees at all times while so engaged in operating said velocipedes upon said railroad tracks shall do so at their own liability and risk, and that the party of the first part shall owe them no duty, either as licensees or otherwise, and shall not be liable for injuries sustained by them, whether arising from negligence or otherwise.

In consideration of the premises the party of the second part hereby agrees to indemnify and hold harmless the party of the first part from any and all loss, costs, demands or damages that may arise or result to the party of the first part on account of injury to any employees of the party of the second part while engaged in operating velocipede cars upon the said railroad tracks between Sparks, Nevada, and Wells, Nevada."

On February 16, 1912, the telegraph company inclosed to appellant a copy of the permit. He was instructed in the letter to carry the permit with him when using the car, so that it could be shown as authority for running it on the respondent's tracks. In the letter his attention was called to former instructions regarding the care he should take in operating his cars in order to prevent accident. He read the permit and carried it with him on several trips. Crosman resided in Reno, and from the date he entered the employ of the telegraph company on July 1, 1911, operated the car out of Reno over the railroad company's tracks in the course of his employment, up to the time of his injuries, without objection from respondent or any of its agents or employees.

Several months prior to the accident, the Southern Pacific Company had completed a double-track system between Sparks and Truckee. Immediately thereafter it commenced, between these two points, and has ever since continued, what is known in railroad parlance, as the left-hand traffic movement. By left-hand traffic movement it is meant that all trains proceed on the left-hand track over the double-track system in the direction of the movement. There were a few temporary interruptions of this movement between Truckee and Reno caused by washouts, but none between Reno and Sparks. Crosman knew of the left-hand traffic movement at the time it was inaugurated; was familiar with its operation and the signals by which it was indicated.

On the morning of February 18, 1914, Crosman and a man named M. J. McQuinn, a lineman also in the employ of the telegraph company, left Reno on the former's velocipede car and went easterly some distance beyond Sparks to do some work on the telegraph company's line. They traveled from Reno to Sparks on the left-hand track, passing a passenger train going west on the opposite track. On their return they reached Sparks about dark. After regulating some engine trouble with the car, they proceeded in the Sparks yards until they came to some switches. They then crossed over to the right-hand track and continued westerly towards Reno. Crosman did not get on the right-hand track through mistake or inadvertance. He testified substantially that he merely wanted to get on a main line track and was not particular as to which one it was. The weather was very cold, cloudy, and windy, and after they got beyond the radius of the lights in the Sparks yard it was very dark. The wind was blowing from the west directly in the faces of the two men. Crosman was seated in the back of the car with his body partly turned to the left-hand rail. McQuinn was seated at the front of the car facing the north. He was wearing a big heavy coat and had the collar pulled around his nose to protect his face from the wind. He had the rim of his hat pulled down and his head bent forward for the same purpose. McQuinn testified that the car was traveling between 15 and 18 miles an hour. Crosman did not think it was running that fast. There was no light on the car. It was the first time Crosman had operated it on respondent's tracks after dark. When at a point about 600 yards west of the Sparks passenger depot, and within the westerly city limits of Sparks, the velocipede car collided with a switch engine drawing some freight cars, which was moving backwards in an easterly direction on the same track, and Crosman was badly injured. Just before the collision McQuinn saw a dark object a short distance in front of them, and, shouting to his companion, rolled from the car in time to avoid injury. The switch engine carried no light in the rear, or other light that the men could see.

When the appellant closed his case, respondent moved for a judgment of nonsuit. The lower court granted the motion and entered judgment of nonsuit, dismissing the action. A motion for a new trial was made and denied.

At the outset we will dispose of one of the contentions made by counsel for appellant. He asserts that the rule of comparative negligence should be applied to the facts of this case, on the ground that appellant was an employee of the respondent. To this contention it is sufficient to say that appellant was in no sense an employee of the Southern Pacific Company. The evidence discloses that he was in the sole employ of the telegraph company, and that his services were rendered for the benefit of this company exclusively.

Was the judgment of nonsuit warranted by the evidence? A judgment of nonsuit may be entered by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the court or jury. Section 295, Civil Practice Act (Rev. Laws, § 5237). The rule by which a plaintiff's evidence must be regarded on a motion for nonsuit has been quite clearly enunciated in former decisions of this court.

"In considering the granting or refusing of a motion for a nonsuit the court must take as proven every fact which the plaintiff's evidence tended to prove, and which was essential to his recovery, and every inference of fact that can be legitimately drawn therefrom, and give the plaintiff the benefit of all legal presumptions arising from the evidence, and interpret the evidence most strongly against the defendant." Burch v. Southern Pacific Co., 32 Nev. 75, 104 P. 225, Ann. Cas. 1912B, 1166.

With due regard for the probative effect of appellant's evidence under this rule, we are of the opinion that the judgment of the lower court was correct on the ground of the contributory negligence of the appellant. The test adopted by this court in Burch v. Southern Pacific Co., supra, when applied to the facts of this case, impels us to this conclusion. It is thus stated:

"A case should not be withdrawn from the jury when reasonable men might * * * differ on questions of fact as to whether or not a plaintiff was guilty of such negligence, * * * and the conclusion that follows as a matter of law, unless the testimony is so conclusive as to compel the court to set aside a contrary verdict."

It must be borne in mind that there is no conflicting evidence as to the acts, omissions, and circumstances which, in the...