Drummond v. Mid-West Growers Co-op. Corp.

• Decision Date: 30 October 1975
• Docket Number: MID-WEST,No. 7551,7551
• Citation: 542 P.2d 198,91 Nev. 698
• Court: Nevada Supreme Court
• Parties: Jud D. DRUMMOND, Appellant and Cross-Respondent, v.GROWERS COOPERATIVE CORPORATION, a California Corporation, and Claude Jerome Hill, Respondents and Cross-Appellants.

Page 198

542 P.2d 198

91 Nev. 698

Jud D. DRUMMOND, Appellant and Cross-Respondent, v. MID-WEST GROWERS COOPERATIVE CORPORATION, a California Corporation, and Claude Jerome Hill, Respondents and Cross-Appellants.

No. 7551.

Supreme Court of Nevada.

Oct. 30, 1975.

McDonald, Carano, Wilson, Bergin & Bible, Reno, for appellant and cross-respondent.

Goldwater, Hill, Mortimer, Sourwine & Pinkerton, Reno, for respondents and cross-appellants.

OPINION

MOWBRAY, Justice:

Jud D. Drummond commenced this action against Claude Jerome Hill and his employer, Mid-West Growers Cooperative Corporation, to recover damages for injuries Drummond received when he was assisting in the removal of a Mid-West truck, driven by Hill, that had stalled and was blocking the outside eastbound lane of Interstate 80 near Fernley, Nevada. The case was tried before a jury that found in favor of Drummond and against the defendants, awarding him damages in the amount of $9,640.35.

After all the evidence had been presented, Hill and Mid-West moved for a directed verdict in their favor. Decision on the motion was reserved, and the case went to the jury. After the jury returned their verdict, defendants moved for judgment notwithstanding the verdict. Drummond, who was not satisfied with the amount of his award, moved the court to grant additur or a new trial limited to the issue of damages. All motions were denied and appeals taken therefrom.

1. The Facts.

On July 17, 1972, Drummond was driving east on Interstate 80 to Ely. Just west of Fernley, he noticed a van stalled in the center median, and he stopped to help push it onto the highway. It was about 12:30 a.m. At this same time, Hill, driving a truck for Mid-West, was also traveling on Interstate 80. The Mid-West truck had a dead battery. Hill knew about the battery. Several hours earlier, in Sparks, he had needed to use jumper cables to start the engine. Hill had decided to drive with the dead battery, expecting that driving would recharge the battery before he reached Winnemucca, his next scheduled stop. By the time Hill approached the scene, several motorists in addition to Drummond had stopped to help. Hill testified that he had not intended to stop, but only slowed down and moved into the inside lane in order to steer around another truck that had stopped and was partially blocking the outside lane. As Hill slowed and was shifting gears, someone yelled at him to ask if he had a chain. At that point, his truck stopped. Drummond testified that Hill parked alongside the median, and subsequent events established that Hill was carrying a chain. Because of the dead battery, he could not restart the engine.

Fully blocking the fast lane of the freeway, the Mid-West truck created an emergency situation. Efforts were quickly organized to chain one of the other trucks at the scene to the Mid-West truck and then tow it off the highway. Drummond suggested using a padlock to hold the chain together. After the Mid-West truck had been pulled just a few feet, the padlock broke. As Hill retrieved the padlock, Drummond waited between the trucks to reattach the chain. As he waited, a car driven by Sharon Williams crashed into the back end of the Mid-West truck, pushing the truck forward and crushing Drummond's arm against the other truck.

There was conflicting evidence as to whether or not Hill had his emergency lights on at the time of the collision. It was undisputed that, contrary to State law (NRS 484.627) ¹ and federal regulation (Motor Carrier Safety Regulations, § 392.22, 49 C.F.R. § 392.22 (1974)), ² Hill had not placed the required three flares, lanterns, or reflectors at distances of 10, 100, and 200 feet, respectively, to the rear of his disabled vehicle in the blocked lane. Instead, Hill had sent one of the bystanders down the highway behind the truck with a flashlight to warn approaching motorists. Drummond testified that he also gave his flashlight to one of his passengers and sent him behind the Mid-West truck. Another motorist, approaching the scene as Williams had, testified that he could not tell that an accident had occurred until he was within 100 feet of it. There was also testimony that the use of the flashlights may have been confusing, perhaps actually directing oncoming drivers into the blocked lane. On the othr hand, there was testimony that numerous vehicles had passed the trucks safely. There was additional evidence as well that Williams had been drinking, was driving at excessive speed, was oblivious of the flagmen, and had not applied her brakes at all. ³

2. Defendants' Motions for a Directed Verdict or for Judgment Notwithstanding the Verdict.

Hill and Mid-West claim, as the basis for their motions, that there was insufficient evidence to establish Hill's negligence, that Williams's negligence was the sole proximate cause of the accident, and that the evidence established that Drummond was contributorily negligent or had assumed the risk of injury. The evidence must be viewed in the light most favorable to the party against whom the motion is made. Neither the credibility of witnesses nor the weight of the evidence will considered. Bliss v. DePrang, 81 Nev. 599, 407 P.2d 726 (1965). The standard for review is whether the evidence is such that reasonable men would have necessarily reached a different conclusion. The conflicting evidence presented created material issues of fact. The jury was the trier of those facts. For the reasons stated below, we affirm the trial court's order denying defendants' motions for a directed verdict or for judgment notwithstanding the verdict.

A. Hill's Negligence.

Drummond charged Hill with various acts of negligence. It is unnecessary at this juncture to review the evidence at length. Suffice it to say that it is sufficient to support the jury verdict. Hill chose to drive with a dead battery. He stopped with the truck fully on the freeway. He may have failed to utilize his emergency lights. He admitted violating state and federal law by not placing flares or lanterns as required, behind his truck. The jurors were properly instructed that they might consider these violations as evidence of negligence.

B. Williams's Negligence.

Williams's negligence was not the sole proximate cause of the accident as a matter of law. There was evidence to sustain the jury's finding that Hill's negligence was a concurrent proximate cause.

The defendant's negligence must be established as a proximate cause of the plaintiff's injury. We have previously defined 'proximate cause' as 'any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury complained of and without which the result would not have occurred.' Mahan v. Hafen, 76 Nev. 220, 225, 351 P.2d 617, 620 (1960). An 'efficient intervening cause' is 'not a concurrent and contributing cause but a superseding cause which is itself the natural and logical cause of the harm.' Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970). Not every intervening cause, or even every negligent intervening cause, acts as a superseding cause absolving the prior negligence. Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141 (1913); Alex Novack & Sons v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961).

Hill and Mid-West claim that the negligence of Williams 'caused' the accident and, because it was an efficient intervening force, they are relieved of liability. In support of their position, they cite Cite of Reno v. Van Ermen, 79 Nev. 369, 385 P.2d 345 (1963), in which the defendant-appellant's possible negligence was held, as a matter of law, not a proximate cause of the plaintiff's injuries. Van Ermen was similarly an action by a third party injured when a speeding motorist crashed into an obstruction created by the alleged negligence of another. As in the present case, the action was brought not against the motorist but against the party responsible for the obstruction. A significant difference between Van Ermen and the instant case, however, is that the plaintiff, Van Ermen, was a passenger in the speeding car, brought into the harm by the motorist, while Drummond became imperiled as he tried to remove the obstruction on the highway. As we acknowledged in Konig v. Nevada-California-Oregon Ry., supra: 'Each case presents its own particular set of circumstances, and a definition of proximate cause which might apply to one might be entirely inapplicable to another.' 36 Nev. at 215, 135 P. at 153.

In Konig, we also said that the test for proximate cause could be 'found in the probable injurious consequences which were to be anticipated . . ..' 36 Nev. at 214, 135 P. at 153. Taking the evidence as it favors Drummond, the emergency situation produced by Hill's negligence prompted efforts at rescue. Assessing the circumstances, a jury could reasonable decide that a foreseeable risk of harm to the rescuers from a negligent or nonnegligent motorist had been created. As part of the prior risk, foreseeable intervening forces are within the scope of the prior negligence and do not negate liability.

3. The Evidence.

The evidence does not establish contributory negligence or assumption of risk as a matter of law.

Defendants' third ground of error in the verdict charges plaintiff with contributory negligence or assumption of risk. However, before these charges may be analyzed, plaintiff's role in the incident preceding his injury must be defined.

Drummond's claim of 'rescuing' was controverted at the trial. Although defendants acknowledged that an emergency situation had been created, they insisted that peril was not imminent and that Drummond's help had not been sought or needed. The potential for harm, however, was, if not imminent, at least immediate and real. And Drummond was in fact giving assistance. There is sufficient contrary evidence to preclude finding the rescue doctrine inapplicable here as a matter of law. Therefore, since Drummond is...