Deiss v. Southern Pac. Co., 3078.

• Docket Nº: 3078.
• Citation: 53 P.2d 332, 56 Nev. 151
• Case Date: January 09, 1936
• Court: Supreme Court of Nevada

53 P.2d 332

56 Nev. 151

DEISS
v.
SOUTHERN PAC. CO. ET AL.

No. 3078.

Supreme Court of Nevada

January 9, 1936

Appeal from District Court, Humboldt County; L. O. Hawkins, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 47 P.2d 928.

COLEMAN, J., dissenting.

Brown & Belford, of Reno, for appellants.

C. E. Robins and Merwyn H. Brown, both of Winnemucca, for respondent.

TABER, Justice.

While this court agrees with appellants upon the proposition of law that verdicts cannot rest upon mere surmise, speculation, conjecture, guess, supposition, or imagination, we cannot agree with their contention that the verdict of the jury in this case was arrived at in such manner. In our opinion, the verdict was based upon facts established by substantial evidence. The difference between appellants and this court, as was said in Solen v. Virginia & T. R. R. Co., 13 Nev. 106, at page 146, arises not so much upon the existence of the rule as to its application. In the petition for rehearing, as in their opening brief, appellants rely upon the cases of Giannini v. Southern Pacific Co., 98 Cal.App. 126, 276 P. 618, 623, Cox v. St. Louis-San Francisco Ry. Co., 223 Mo.App. 14, 9 S.W.2d 96, 102, and Plinkiewisch v. Portland Ry., L. & P. Co., 58 Or. 499, 115 P. 151, 153. These three cases were mentioned, but not discussed, in our former opinion [ Deiss v. Southern Pac. Co., 47 P.2d 928]. Inasmuch, however, as no case on all fours with the one at bar has been found, either by [53 P.2d 333] court or counsel, and because said cases are in some respects similar to the instant one, we deem it proper and fair to the appellants that we should indicate why we have not considered them controlling.

In Giannini v. Southern Pacific Co., supra, the train, which was moving at the rate of about 5 miles an hour, proceeded 35 feet beyond the crossing where the collision took place. The testimony of an expert engineer, that the engine could have been stopped within 10 feet after applying the emergency brakes, was thoroughly discredited, it clearly appearing from the evidence that the rails were wet, not dry, as testified by said expert, and that the wheels of the engine slid a distance of 18 feet after they were locked with the brakes. The uncontradicted testimony of the train crew was that when it became obvious that deceased was attempting to cross the track, the switchman gave the engineer the emergency stop signal, jumped from the car, and shouted to the deceased to attract his attention, and that the engineer immediately applied the emergency brakes and did everything he could to bring the train to a stop. Death was instantaneous, deceased's brains having been knocked out. In said case the court refused to apply the last clear chance doctrine at all. The court said, "Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise," and again, "The words mean exactly as they indicate, namely, last clear chance, not possible chance." It is very clear to this court that the case at bar is neither a possible chance case, nor one involving a splitting of seconds. In the Deiss Case there is clear and satisfactory evidence showing that the train proceeded 1,287 feet from the point of collision, whereas it could have been stopped within 350 feet from that point. In the Giannini Case the Court of Appeal held that defendants' negligence could be determined only by speculation. In the Deiss Case the negligence of defendants, from a point approximately 350 feet west of the Bridge street crossing to the place where the engine stopped, is clearly established by positive and expert testimony. The statement of the court in Giannini Case to the effect that the place where the injuries were received could be determined only by speculation may well be applicable under the facts of that case. It is our opinion that it is not applicable in the case at bar. In the Giannini Case the court said that the burden was upon plaintiffs to show that the injuries were received at the place where the train stopped. In the Deiss Case it was not necessary for plaintiff to prove that the fatal shock was received at some certain and exact place westerly from the point where the train could have been stopped; it was only necessary for plaintiff to prove that said shock was received anywhere between the point where the train could have been stopped and the place where it did stop, and, as will appear later herein, plaintiff's proof in that regard was not required to be beyond a reasonable doubt, beyond any doubt, to a certainty, or clear and satisfactory, but only a preponderance of the evidence.

In Cox v. St. Louis-San Francisco Ry. Co., supra, plaintiffs claimed that the train should have been stopped in from 60 feet to 80 feet, whereas defendant's testimony was to the effect that the train was stopped in approximately 90 feet, that it could not have been stopped with safety any quicker, and that those in charge of the train, the moment they saw the automobile, did all in their power to stop. Death was the result of physical injuries. In said case the court said: "But, if it be conceded that there was substantial evidence tending to show that this train, under the conditions, should have been stopped in from 60 feet to 80 feet from the point where the effort to stop was or should have commenced, then it would still have to appear that such stopping would have been in time to have saved the life of Cinda Cox, the deceased." This court does not disapprove of anything in the above statement as applied to the facts in the Cox Case. Plaintiff in the case at bar had the burden of showing that the fatal shock was received somewhere between the place where the train could have been stopped and the place where it did stop. The instant case differs from the Cox Case in that the verdict of the jury in this case was based upon facts and circumstances established by substantial evidence, and not upon mere speculation. The fact that in the Cox Case more than a page of the opinion is devoted to a discussion of whether or not the train could have been stopped sooner than it was, shows, especially in a case where the evidence clearly establishes negligence, that the fact of a violent dragging of an automobile, with a living person in it, many times as far as was reasonably necessary, would be an important circumstance which, along with other facts and circumstances such as those in the Deiss Case, would enable a jury to reach a verdict on the basis of substantial evidence, not mere conjecture. [53 P.2d 334]

In Plinkiewisch v. Portland Ry., L. & P. Co., supra, plaintiff's intestate, a pedestrian, was struck and killed by one of defendant's street cars, which at the time was moving at a rate from 2 to 4 miles an hour, and which carried deceased a distance of some 40 to 60 feet after he was struck. It does not appear within what distance plaintiff claimed the street car should have been stopped. Death was the result of physical injuries. The statement of the court in said case to the effect that "the whole accident was one transaction, and, to attempt to cut it into fragments, it would have been necessary to require the jury to depart from the realm of proof and enter the domain of speculation," may be applicable to the facts of that case, which appears to be another "splitting of seconds" case. But in our opinion it is not applicable to the facts in the case at bar, wherein the accident was a transaction which can and should be segregated in at least two particulars. First, the train could have been stopped within 350 feet of the Bridge street crossing, but as a matter of fact was not stopped until it reached its regular stopping place at the station in Winnemucca--the engine stopping at a point, 1,287 feet from said Bridge street crossing. Second, the defendants would not have been negligent had they stopped the train within approximately 350 feet of the Bridge street crossing, but from said point where the train could have been stopped to the place where the train was actually stopped, the defendants were clearly negligent.

In Pacheco v. Southern Pacific Co., 129 Cal.App. 610, 19 P.2d 251, deceased, while operating a truck, was struck by one of defendant's trains at a street intersection and carried about 350 feet before the train was brought to a stop. Death resulted from the collision. The speed at which the train was proceeding does not appear, nor does it appear whether the train crew did all they could to stop the train as soon as, with safety, they reasonably could. Plaintiffs on appeal did not rely upon the last...