Deiss v. Southern Pac. Co.

Decision Date03 August 1935
Docket Number3078.
Citation47 P.2d 928,56 Nev. 151
PartiesDEISS v. SOUTHERN PAC. CO. ET AL.
CourtNevada Supreme Court

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

Action by Adelaide M. Deiss, administratrix of the estate of Christian Deiss, deceased, against the Southern Pacific Company and another. From a judgment for plaintiff and an order denying defendants' motion for a new trial defendants appeal.

Affirmed.

COLEMAN J., dissenting.

Brown & Belford, of Reno, for appellants.

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

TABER Justice.

On the afternoon of December 2, 1930, at the city of Winnemucca, Christian Deiss, for some unknown reason, drove his automobile directly in front of appellant company's freight train, "Extra 4373 West," the engine of which collided with said automobile at a point where Bridge street crosses said company's tracks. The automobile, with Deiss in it, was picked up and carried on the pilot of the engine until the train stopped at the station--the engine stopping at a point approximately 1,287 feet from said Bridge street railroad crossing. Deiss was here removed from the automobile and taken to a hospital, where he died on the following day; death being due, not to physical injuries, but to profound shock.

Respondent, Deiss' widow, brought this action as administratrix of his estate to recover damages from appellant company and appellant B. Thoni, engineer operating the engine at the time of said accident. Appellants filed a general demurrer, but so far as the record shows the demurrer was not presented to or ruled on in the trial court. Appellants later answered the complaint, denying any negligence on their part and setting up two affirmative defenses alleging contributory negligence on the part of Deiss. In her reply to the new matter in said answer, respondent denied that Deiss' negligence alleged in the two affirmative defenses contributed to or was the cause of his death.

The case was tried with a jury in the Sixth judicial district court, county of Humboldt. In his opening statement, counsel for respondent admitted that Deiss was careless in driving his automobile onto the crossing directly in front of the oncoming train, but told the jury that a verdict would be asked upon the ground of appellants' negligence in not stopping the train within some 350 feet from the point of collision.

At the conclusion of respondent's presentation of evidence, appellants moved for a nonsuit, which was denied; whereupon they rested, and then moved the court to direct the jury to find a verdict for the appellants. The court also denied this motion. The jury returned a verdict for respondent in the sum of $5,000. Appellants moved for a new trial, which was denied. Thereupon appellants appealed to this court from the judgment, and from the order denying a new trial.

Appellants contend that the complaint fails to state facts sufficient to constitute a cause of action. Respondent argues that this objection has been waived by appellants, and that the defect, if any, has been cured by the verdict, for the reason that the point was not urged in the court below. Counsel for respondent are in error on this point; for, while in many states such defect may be waived or cured, it is settled in Nevada, as pointed out in appellants' closing brief, that where this defect exists, it is not waived, or the defect cured by verdict, by reason of the fact that it was not urged in the trial court. Nielsen v. Rebard, 43 Nev. 274, 183 P. 984; Nichols v. Western Union Tel. Co., 44 Nev. 148, 191 P. 573; N. C. L. § 8601.

It is true, however, as stated in Nielsen v. Rebard, supra, that "courts do not look with favor upon objections of this kind when made for the first time in the appellate court"; and respondent is correct in her position that after verdict the complaint will receive a liberal construction. Baldwin v. Wells (Mo. App.) 27 S.W.2d 435; Gynther v. Brown, 67 Or. 310, 134 P. 1186; Stevens v. Westport Laundry Co., 224 Mo.App. 955, 25 S.W.2d 491; Blashfield, Cyc. of Automobile Law and Prac. (Permanent Edition, 1935) § 5932.

To better understand appellants' contention and this court's ruling thereon, the appropriate portions of respondent's complaint are here given:

"That on the 2d day of December, 1930, and for several years prior thereto, said portion or part of said railroad and tracks and the space between said track and that immediately contiguous thereto were frequently and constantly used as a passage or crossing way by the public generally, in walking, driving automobiles, and passing and repassing and along, over, and across the same, all of which was with the knowledge and acquiescence of the defendants, so that and by reason thereof it became and was the duty of the defendant, Southern Pacific Company, and its servants, and particularly the defendant, B. Thoni, in charge and control of its locomotive engines whilst operating and running said engines near to and over and along said portion or part of said railroad and tracks to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them.

That on the 2d day of December, 1930, the said Christian Deiss, then and there occupying and driving an automobile, ran the same in front of an engine then attached to a train of 77 cars, and known as Train Extra West No. 4373, belonging to the defendant, Southern Pacific Company, and in control of the defendant, B. Thoni, who was then and there the engineer on said engine.

That at the same time, the said engineer had a continuous, full and unobstructed view of the said Christian Deiss, then and there driving said automobile upon said railroad and tracks, for the distance of about fifty yards.

That the said train so operated by the said defendant, Thoni, was being operated at a speed of about thirty miles per hour.

That the defendant, Southern Pacific Company, and the defendant, Thoni, its locomotive engineer and servant in charge and control of said locomotive engine, carelessly and negligently failed to discharge their duties as aforesaid and did not use ordinary care, or any care whatever to keep a reasonable lookout to discover the said Christian Deiss aforesaid as it was his duty to do, but he kept no reasonable lookout whatever, and that the said engine ran into and carried the said Christian Deiss and the said automobile in which the said Deiss was then and there seated, a distance of more than 1100 feet and by reason whereof the said Deiss, on the 3d day of December, 1930, died from shock to his nervous system.

That from the position of the defendant Thoni, and from his place in and on said engine, the said engineer could have stopped said engine and cars in a distance of 250 feet, and that the life of the said Christian Deiss would thereby have been saved.

That the said defendant, Thoni, then and there and at the time of striking the automobile of the said Christian Deiss, knew, or had good reason to believe that the said Christian Deiss was not aware of the danger the said Christian Deiss was then in and that the engineer, the said defendant Thoni, saw the said Deiss in such a position and in time to prevent injury to the said Deiss, and in time to have prevented the said Deiss from dying of shock.

That the said Deiss, at the time of his death, was of the age of about 57 years."

The basis of the last clear chance doctrine, as set forth in the 1935 permanent edition of Blashfield's Cyclopedia of Automobile Law and Practice, is this: "A plaintiff who has negligently placed himself or his property in a situation of imminent peril and is either unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover damages of the defendant who negligently inflicts injury, if the defendant could have avoided the injury after discovering the plaintiff's peril." Vol. IV, p. 536.

The complaint in the case at bar, while imperfectly drawn, contains, either directly and positively on the one hand, or by necessary implication or reasonable inference on the other, all the essential elements of a last clear chance case. That deceased was in a position of peril from which he could not extricate himself clearly appears from the allegation that he and the automobile he was driving were picked up by the pilot of the engine when the train was traveling about 30 miles per hour and carried more than 1,100 feet. It is expressly alleged by direct allegation that it was the duty of defendant and its servants "to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them." It also appears from the complaint that defendants had actual or constructive notice of deceased's peril. The allegations of the complaint are sufficient to show, further, that defendants, after they became aware or should have become aware of deceased's peril, had the present ability, with means in hand, to have averted Deiss' death, that they failed to do so, and that by reason thereof Deiss lost his life. Pollard v. Oregon Short Line R. Co., 92 Mont. 119, 11 P.2d 271; Baldwin v. Wells, supra; Stevens v. Westport Laundry Co., supra; Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Louisville & N. R. Co. v. Scott, 222 Ala. 323, 132 So. 29.

There does not appear to be any direct or positive allegation in the complaint that defendants, after...

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