Dudley v. Prima
Citation | 445 P.2d 31,84 Nev. 549 |
Decision Date | 20 September 1968 |
Docket Number | No. 5512,5512 |
Parties | James B. DUDLEY, Appellant, v. Louis PRIMA, Respondent. |
Court | Supreme Court of Nevada |
Stanley W. Pierce, Robert Farkas, Las Vegas, for appellant.
Wiener, Goldwater & Galatz, Las Vegas, for respondent.
This is an appeal from an order granting respondent's motion, made pursuant to NR CP 50(b), to set aside a verdict and judgment based thereon in favor of appellant and to have judgment entered in respondent's favor.
On March 6, 1966, at approximately 6:20 p.m., appellant and his family were driving their pickup truck on Placid Street, a highway in Clark County. Appellant was towing a tandem horse trailer loaded with his two horses. He was traveling at the speed of 20 to 25 m.p.h. when his truck struck two unmarked water pipes 3 to 4 inches in diameter which had been placed across the road bed at a distance of about 6 feet apart. The water pipes extended from under the fence of property rented but not owned by respondent, over the roadway onto property owned by Warm Springs Country Club, Inc. When the truck struck the water pipes, the trailer became unhitched, veered to the left, overturned, and appellant's horses were thereby injured.
Appellant sued respondent for negligence in creating or maintaining the water pipes, and the jury awarded $955 in damages. Respondent, at the conclusion of appellant's case, moved for a directed verdict, which the trial judge did not grant, but 'reserved for ruling.' After the jury returned its verdict, respondent moved, pursuant to NR CP 50(b), to set aside the jury's verdict and judgment in favor of appellant, and asked that judgment be granted in his favor. This the trial judge did, and properly so.
The sole issue before us on this appeal is whether, in the record before the trial court, there is any substantial evidence to support the jury's verdict. Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963). A motion for judgment notwithstanding the verdict presents solely a question of law to be determined by the court, and the power to grant such motions should be cautiously exercised. Clarke v. Chicago & N.W. Ry. Co., 63 F.Supp. 579 (D.Minn.1945).
As the court said in Ries v. Sanders, 34 F.R.D. 468, 470 (N.D.Miss.1964):
'In 30 Am.Jur., Judgments, § 300, pp. 354--355, cited with approval in Green v. Gulf, Mobile & Ohio Railroad Co., 244 Miss. 241, 141 So.2d 216, it is stated.
* * *.'
It is unnecessary to cite the decisions supporting the well established rule that in determining whether the defendant is entitled to a directed verdict, the evidence must be treated as proving every fact favorable to the plaintiff's case which is established either directly or by reasonable inference. The same rule applies to a motion for a judgment notwithstanding the verdict.
Appellant sued respondent in the trial court below on the theory that respondent negligently created or maintained the water pipes crossing the roadway and that when his truck struck the pipes his horse trailer became detached, overturned, and his horses were injured.
The law is settled that a person is not liable for injuries resulting from conditions which he has not been instrumental in creating or maintaining.
In the court stated in Lucas v. St. Louis & S. Ry. Co., 174 Mo. 270, 73 S.W. 589, 591, 61 L.R.A. 452 (1903):
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