Jones v. Golick

• Decision Date: 04 May 1922
• Docket Number: 2526.
• Citation: Jones v. Golick, 46 Nev. 10, 206 P. 679 (Nev. 1922)
• Parties: JONES v. GOLICK ET AL.
• Court: Nevada Supreme Court

206 P. 679

46 Nev. 10

JONES v. GOLICK ET AL.

No. 2526.

Supreme Court of Nevada

May 4, 1922

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by C. C. Jones against Charles Golick and S. L. Kovachevich. From a judgment for plaintiff, defendants appeal. Affirmed as to defendant Charles Golick and reversed as to defendant S L. Kovachevich.

Augustus Tilden, of Reno, for appellants.

Boyd & Curler and B. F. Curler, all of Reno, for respondent.

DUCKER J.

This action grows out of an accident in which an automobile owned by respondent was struck by an automobile belonging to appellant Kovachevich. Respondent recovered damages in the court below. Judgment was entered in favor of respondent and against appellants jointly and severally in the sum of $415.30. From the judgment and order denying a motion for a new trial, this appeal is taken.

At the time of the accident respondent's son, Elmer, was driving his car, and appellant Charles Golick, a brother-in-law of Kovachevich, was driving the latter's car.

The court found that the accident was caused by the negligent driving of the appellant Golick, and the first question we are called upon to determine is whether there is sufficient evidence to sustain this finding. Appellants contend that the accident was due solely to the negligent driving of respondent's son. They further contend that, under any aspect of the evidence, the matter of negligence is left so uncertain that it is impossible for a court to assign the blame to one driver rather than the other. The version of the conditions surrounding the accident, and the way in which it happened given by the witnesses testifying on behalf of respondent, the lower court, of course, had a right to believe. If the substance of this version is sufficient to sustain that finding of the trial court, we cannot disturb it, even though there is other substantial evidence which contradicts this version.

The accident happened on the 10th of August, 1920, between 8 and 9 o'clock, p. m. at a point on a road about 3 miles westerly from the city of Reno. The exact spot of the accident is a matter of dispute in the evidence. According to the version of appellants' witnesses, it happened on a small bridge which extends diagonally across the road. The testimony of respondent's witnesses places it at a point about 8 1/2 feet west of the bridge.

Respondent's automobile was traveling on the road in a westerly direction and the other machine in the opposite direction. In the vicinity of the scene of the accident, the road is comparatively straight from a point about 400 feet westerly from the bridge, to a point about 400 feet easterly from the bridge. There is a curve in the road at each of these points. A person in an automobile after it had rounded either curve could see an automobile after it had rounded the opposite curve and along this stretch of the road. The version of the affair as given by respondent and his witnesses is substantially as follows: Respondent testified that he went to the scene of the accident the next morning at about 7:30 or 8 o'clock, and as to observations and measurements made by him there. He found his automobile in a damaged condition a short distance west of the bridge. From measurements made by him, the rear end of the car was 18 inches north from the main traveled north wheel track of the road. From the left front wheel of the car across the road to the southern boundary thereof, the distance, as measured by respondent, was 10 1/2 feet, and beyond this was a ditch running near the south side of the road. The right front wheel was between 2 and 3 feet east of a telephone pole which stood near a fence on the north side of the road. At a point opposite the rear end of the car, the distance from the southern road track south to the bank of the ditch was about 1 foot, making a clearance of about 9 1/2 feet between the rear end of the automobile and the ditch on the other side of the road. According to measurements made by respondent, the bridge was about 15 1/2 feet wide. The main traveled rut of the road on the north side of the bridge was about 4 1/2 or 5 feet from the north edge of the bridge. Respondent testified that he traced the track of the right-hand wheels of his car back from the car across the bridge to where they left the road between the bridge and a culvert; that the track turned out of the road to the north between the culvert and the bridge and continued out of the road, crossing the bridge at a distance of about 1 foot from the north end of the bridge where the track came onto it, and at a distance of about 3 or 4 inches from the north end of the bridge where the track left it.

Respondent's son Lester testified that he went to the scene of the accident on the morning of the 11th of August; that he was there three times on that day; that he was there with his father at about lunch time and took some measurements; that apparently the front end of the car had been moved, "shoved over off the road for a distance of 16 or 17 inches" from the north wheel track; that the "rear end apparently had not been moved, because the spokes of the hub were sticking down into the ground"; that the measurements showed that respondent's car was 8 1/2 feet west of the bridge; that the distance from the body of the car in the rear to the south side of the road--to the traveled rut--was 8 1/2 feet; that the distance from the front end of the car to the south side of the road was 10 feet and 3 or 4 inches; that the distance from the right front wheel of respondent's car to the telegraph pole was 2 feet and 4 inches; that the wheel was in a southeasterly direction from the pole; that the distance from the pole to the south side of the road was 17 feet and 6 or 7 inches, and from the pole to the ditch bank was 19 1/2 feet; that on the first trip to the car witness traced the track of the right-hand wheel of respondent's car across the bridge; that it was about 14 inches from where the track came onto the bridge from the east to the north end of the bridge, and from where it left the bridge on the west side it was about 3 or 4 inches to the north end of the bridge.

Respondent's son Elmer Jones testified substantially as follows: That he was going on 19 years of age; that he had driven an automobile for at least 3 years and was driving his father's car on the night of the accident; that there were three other boys riding in the car at the time; that during the evening he had been driving between 15 and 20 miles an hour and was driving at that rate as he approached the bridge where the accident occurred; that he was slowing down for the bridge to about 12 miles an hour when he reached the culvert; that he could not tell how fast he was going when he crossed the bridge, but he was slowing down all the time; that he was slowing down at the culvert when he first observed appellants' car coming around the corner west of the bridge; that he estimated the speed of the oncoming car at that time to be about 35 miles an hour; that he started to turn his car out of the road as soon as he saw the other car, and the nearer it came the more he turned out; that he turned out to give the road, as the other car was coming faster than he was; that there was room enough for the two cars to pass on the bridge with about a foot between them; that he crossed the bridge on the north part of it and had reached a point about 8 or 10 feet to the west of the bridge, when the car driven by Golick collided with respondent's car; that before the car driven by Golick reached respondent's car it turned to the right and then quickly swung to the left, diagonally across the road; that respondent's car was out of the road on the north or right hand side, with the lights pointing out towards the field on that side, and the left-hand wheel was about 18 inches out of the rut when the car was struck; that Kovachevich's car did not seem to slow up any; that when respondent's car was struck the back end of the car did not move and the front end was slung into the road; that appellants' car was carried sideways to the bridge and stopped directly on top of it and across the road at the same angle; that he was out to the scene of the accident the next day or the day afterwards; that the car had not been moved from where it was left after the accident.

On cross-examination as to the speed of his car, the witness testified as follows:

"Q. Did you go at the rate of 20 miles an hour until you reached the culvert? A. No, I was going about the same rate of speed.

Q. Still 20? A. Well, I don't know whether it was 20 or 15.

Q. You swear it was not 25? A. I know it wasn't 25. Q. Swear solemnly that it wasn't 25? A. No, I don't like to.

Q. Would you swear it wasn't 30 miles an hour? A. I wouldn't like to.

Q. Would you swear it was not 35 miles an hour? A. Yes, I would.

Q. Anywhere between 30 and 35 miles an hour you wouldn't like to swear? A. No, I am pretty sure it wasn't."

With reference to the direction taken by the car in going over the bridge, the witness testified as follows on cross-examination:

"Q. Then, when you got down here to make the bridge you had to make it at an angle? A. I didn't have to make it at an angle.

Q. Didn't you take it on that angle? A. I took it on that angle, yes."

Melvin Curtis, a witness on behalf of respondent testified substantially as follows: That he was 17 years old and had driven a car frequently since 1917 and had also driven a truck; that he had driven or ridden in a car sufficiently to have an idea of the rate of speed a car was going; that on the night of the accident he was riding in respondent's car and was sitting on the rear seat on the left-hand side that they had not been traveling more than 20...