Hilton v. Hymers

• Decision Date: 01 March 1937
• Docket Number: 3166.
• Parties: HILTON v. HYMERS. [*]
• Court: Nevada Supreme Court

65 P.2d 679

57 Nev. 391

HILTON v. HYMERS. ^[*]

No. 3166.

Supreme Court of Nevada

March 1, 1937

Appeal from District Court, Douglas County, First District; Clark J Guild, Judge.

Action by Roy Hilton, as administrator of the estate of Gertrude Hilton, deceased, against Lewis Hymers. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas F. Ryan, of Reno, for appellant.

L. D Summerfield and A. Ross Schindler, both of Reno, for respondent.

COLEMAN Chief Justice.

This is an action to recover damages alleged to have been sustained by reason of the death of Gertrude Hilton, wife of Roy Hilton, due to injuries received in an automobile accident at the intersection of Arlington avenue and Taylor street in Reno.

The complaint, in the first count, charges the defendant with ordinary negligence, and in the second with willfulness wantonness, and malice.

The defendant, in his answer, denied the allegations of negligence contained in both counts of the complaint, and pleaded contributory negligence on the part of deceased.

In view of the fact that the trial court found against the plaintiff on the second count, we will make no further reference to it.

The case was tried to the court. Judgment was rendered in favor of plaintiff on the first cause of action, from which, and an order denying a motion for a new trial, the defendant has appealed.

The parties will be referred to as in the lower court.

Arlington avenue runs north and south, and Taylor street runs east and west.

It is the theory of the plaintiff that the deceased, while driving her car, entered the intersection in the exercise of due care; that she had the right of way, had actually passed beyond the center of Arlington avenue, and turned to the north, and while thus occupying the intersection, the defendant entered said intersection in his automobile, traveling at more than sixty miles per hour and without exercising care to observe the presence of the deceased, and in so doing caused the injury resulting in her death.

The court found that the accident was caused solely by the negligence of defendant, and that deceased was not guilty of contributory negligence. It made many other specific findings, some of which we will refer to.

Defendant assigns seven errors as grounds for a reversal of the judgment and order appealed from, all in substance being that the evidence is insufficient to justify the judgment, save one, which is that the damages awarded are excessive.

Counsel for appellant, preliminary to the presentation of his main discussion, says that as a general proposition, in a damage suit negligence on the part of the defendant is not presumed from the mere fact of injury, citing 45 C.J. pp. 1148, 1149. We have always understood such to be the general rule, to which there are exceptions. Counsel for the plaintiff concedes the correctness of the statement, and in the trial of the case called several witnesses to prove that the accident in question was due to the negligence of the defendant.

There is no testimony by Mrs. Hilton, she having died shortly after the accident.

Viewing the testimony in the case as we do, and having in mind the well-known general rule to the effect that where the evidence is conflicting and there is substantial evidence to support the judgment there will be no reversal [Butzbach v. Siri, 53 Nev. 453, 5 P.2d 533], we see little reason for reviewing the evidence in this case, except for the apparent seriousness with which the appeal is prosecuted.

There are no stop signs at the intersection in question, and the city ordinance limits the speed of automobiles in that vicinity to twenty miles per hour, and in intersections to twelve miles per hour.

Let us now inquire if there was substantial evidence to sustain the finding that deceased was in the exercise of due care at the time of the accident.

H. J. Day testified that on the afternoon of the accident he was in the rear end of his lot, which is on the south side of Taylor street and the west side of Arlington avenue, facing Arlington avenue; that while he was there deceased passed, going along Taylor street in an easterly direction, at about fifteen miles per hour; that after she passed he went over and turned on the water, then went and picked up the hose, and was watering the grass when he heard a noise sounding like a ton of dynamite; that he observed the situation and had his wife telephone for the ambulance; and that he went over and helped remove Mrs. Hilton from beneath her car.

Willis R. Pressell testified that at the time of the accident in question he resided at 815 Arlington avenue, being the fourth lot north of Taylor street, the intervening lots being vacant; that at the time of the accident, between 1 and 2 o'clock in the afternoon, he and his wife, who were in the basement, heard a loud crash and a loud squeal; that he went over to where the cars were, and helped extricate the deceased; and that he examined the Hilton car and found it was in second gear. Mildred M. Pressell, wife of Willis R. Pressell, testified to the same state of facts.

Carl C. Barnes testified that he had resided in Reno for about thirty years and had driven automobiles practically every day since 1910; that he had driven numerous makes of cars, and in many races; that on the afternoon of the day of the accident in question he was driving north on Arlington avenue, and that the car of defendant passed him, going north, one block south of the place of the accident, at which time it was traveling at about sixty or sixty-five miles an hour; that he observed the car driven by deceased, as it approached Arlington avenue, and that it was going about thirteen miles an hour; that the rear of her car was just over the center of the intersection, to the east; that he looked at his speedometer and it showed he was going between twenty-five and thirty miles an hour, nearer thirty than twenty-five. He also testified that it was his best judgment that deceased was making a turn to the north after entering the intersection, and that he saw the deceased making a movement of the arm, such as a person might make after signaling for a turn or reaching for the top of the steering wheel.

Walter Walters testified that he was twenty-six years old; that he had driven ever since he was fourteen years old, and nearly every kind of car; that on the afternoon of the accident he was driving a Ford V-8 along Arlington avenue into Reno, and that the defendant passed him, going at the rate of seventy miles per hour; that he was going thirty-five miles an hour; and that defendant went two blocks while he was going one.

Ernest Pfeiffer testified that he is about fifty-three years old, and had been an invalid for about ten years; that he had driven automobiles from 1908 to about 1931, and had ridden in them since; that on the afternoon of the accident he and Paul Laiolo were sitting on his porch, which faces Arlington avenue, according to his habit on good days ever since he had become afflicted; that he had observed cars go by during those years; and that on the afternoon in question he saw defendant's car pass at a terrific speed, and in about three and a half seconds heard a terrible crash a block away--at the intersection of Taylor street and Arlington avenue, where he saw the wrecked cars.

Paul Laiolo testified that he was eighteen years old and had just completed his sophomore year as a student at the University of Nevada, at the time of testifying; that he visited with Mr. Pfeiffer on his porch probably two or three times a week; that he observed defendant's car pass on the afternoon of the accident; that while sitting there he heard the car approaching at a high speed (that he was a poor judge of speed, but was of the opinion the car was going at least forty miles an hour when it passed the Pfeiffer home); that as it passed either he or Mr. Pfeiffer remarked: "That fellow is flying." He was asked how long it was from the time the defendant's car passed until he heard the crash, to which he answered: "Well, I would say after my eyes left the automobile I turned back facing North and caught the glimpse of the other automobile that turned over; and in that statement 'That fellow's a flying' was made, that instant, there was a crash. I would say it wouldn't take more than three to four seconds, perhaps less."

The defendant testified that at the time of the accident he was driving on the right-hand side of Arlington avenue; that his usual speed on that street was between thirty and thirty-five miles per hour, and he estimated he was going at that speed at the time of the accident; that the first he saw of the car driven by deceased was at the time the cars crashed; that he glanced down Taylor street, to the west, when he was in about the middle of the block, but saw nothing approaching. He testified that as he was driving along Arlington toward Taylor he observed a lot of children playing ball on his right (east side of Arlington), and that he kept his attention centered on the children because he had a horror of running into a child.

Lee Arthur, a witness called in behalf of the defendant testified that he was an automotive engineer; that he had had three years at the University of Michigan, but did not take a degree; that he had been with several large organizations, among them General Motors and General Electric, for which he worked, not as an automotive engineer, "but internal combustion." He gave other testimony relative to his qualification to give testimony as to the maximum speed at which defendant's car was going at the time of the accident, basing his conclusions upon the injuries sustained by the car of deceased. He testified that the car was not going over thirty-five...