Kerr v. Mills
| Decision Date | 08 April 1971 |
| Docket Number | No. 6271,6271 |
| Citation | 483 P.2d 902,87 Nev. 153 |
| Parties | Peggy Ann KERR, a Minor, by Ralph Kerr, as Guardian ad Litem, Appellant, v. Laura Ethel MILLS, Respondent. |
| Court | Nevada Supreme Court |
Nada Novakovich, Reno, for appellant.
Diehl, Recanzone & Evans, Fallon, for respondent.
Appellant Peggy Ann Kerr, a child of eight at the time of the two-car collision that gives rise to this action seeking recovery for personal injuries, asks reversal of a judgment entered against her upon an adverse jury verdict. On this appeal, she contends the trial court erred in denying her motion under NRCP 50(a), which sought a directed verdict upon the issue of liability, and in denying her post-trial motion under NRCP 50(b), which alternatively sought a judgment notwithstanding the verdict or a new trial. We affirm the judgment because, although respondent Mills may have been negligent in failing to see the car in which appellant was riding, the record does not permit us to say with certainty that this negligence was a proximate cause of the collision in question. Appellant further contends that this action, filed in Washoe County, should not have been transferred to Churchill County, where the 77-year-old respondent, a retired school teacher, has been a lifelong resident. The latter complaint was not made below, and therefore we shall not entertain it.
The collision in question occurred on Sunday morning, July 13, 1969, some 90 feet east of the 'intersection' of Scheckler and McLean roads in a rural area near the town of Fallon. Scheckler road is a two-lane, paved, through road that runs east and west. McLean road is a two-lane, paved, secondary road that courses in a southerly direction, meeting Scheckler obliquely to form an irregular 'Y,' the straight trunk of which is Scheckler. A stop sign controlling entry from McLean onto Scheckler is located in the fork thus formed, some 20 feet northerly of Scheckler's paved right of way. The corners of the roads' union are not angular; instead, viewed from the stop sign, McLean fans out in a broad curve to the east to conjoin with Scheckler; thus, as McLean's approach to Scheckler is a trifle oblique, the 'intersection' is rather elongated. The foregoing can be discerned from the pictures in evidence, taken with the testimony, but we have before us neither a diagram nor any measurements of the intersection. It does appear, however, that a driver turning to the east off McLean would be totally within Scheckler's eastbound traffic lane before passing a fence line by which the investigating officer defined the easterly boundary of the elongated intersection.
At the time of the collision, appellant Kerr was riding east along Scheckler road, as guest in the rear seat in a car driven by Roberta Strasdin. Appellant's theory of the case is that respondent Mills negligently drove from McLean into Scheckler's eastbound traffic lane, usurping Strasdin's right of way, and causing Strasdin's vehicle to collide with the Mills car. Appellant Kerr did herself anticipate danger prior to the accident, and could give no testimony regarding its cause; in regard to liability, her case is based on testimony by Strasdin, by an investigating officer, and by Mills as an adverse witness.
The officer found 'very light' skid marks commencing at a fence by which he defined the east end of the intersection, and measured them by pacing off approximately 90 feet (30 paces) to debris by which he fixed the point of impact, then on 84 feet east to where the Strasdin vehicle had come to rest across the westbound traffic lane. He could not say whether there were gaps in the skid marks; we cannot discern whether they were 'two-wheel' or 'four-wheel'; thus, differing inferences may be drawn from their presence. All they establish with any certainty is that, at some time before the collision, Strasdin did see the Mills car, and, at the fence line just referred to, applied her brakes to some degree. The officer also testified that Scheckler road is 'unposted,' that the general speed limit of 'safe and reasonable' applies to the area, and that Miss Mills told him she had not seen the Strasdin car prior to the accident, a fact she acknowledged at trial.
Mills testified that she stopped on McLean at the stop sign, looked right and left, saw no cars, made her turn in the elongated intersection, and was proceeding straight along Scheckler when struck at about the point identified by the officer.
Strasdin testified that when she was approximately 10 feet west of the intersection, traveling approximately 60 miles per hour, she saw Mills' vehicle in the 'opposite lane,' applied her brakes, was unable to stop, and thus struck Mills' vehicle when it was 'on the line' between the two lanes of traffic, doing damage to the left front of her vehicle and the right rear of Mills' vehicle.
The record contains little else to aid our deliberations. The general area was relatively flat; the day was clear, the pavement dry; the view of the drivers was substantially unobstructed, although utility poles on Scheckler's north side, the centerpost of Mills' car, and the angle at which McLean approaches Scheckler may have combined to limit the scope of Mills' vision. All witnesses agreed that Mills' car proceeded straight east on Scheckler after the impact, which might inferentially support the view that Mills had completed her turn by the time of the collision. Contrary to Mills' testimony, Strasdin said there was a car proceeding west in the westbound traffic lane (which, to the extent the jury believed it, might go to show why Strasdin did not pass around Mills), and Strasdin also fixed the point of impact closer to the intersection than did Mills and the officer. Other conflicts exist regarding facts that in themselves have uncertain probative value, e.g.: whether Strasdin's car was 'totaled out' as she claimed, or slightly damaged as the officer testified; whether appellant's nose bled heavily or lightly; whether Strasdin told the officer that appellant's nose had been injured on a prior occasion. While some of these conflicts do not relate to matters that directly help fix liability, yet to the extent the jury disbelieved Strasdin in these and other matters in dispute, they might discount her testimony in others.
1. In determining whether denial of a motion under NRCP 50(a) or NRCP 50(b) is erroneous, we 'must view the evidence and all inferences most favorably to the party against whom the motion is made.' Bliss v. DePrang, 81 Nev. 599, 601, 407 P.2d 726, 727 (1965); Wilson v. Perkins, 82 Nev. 42, 409 P.2d 976 (1966). Collecting a number of Nevada authorities in support of the proposition, we recently said in Ewing v. Sargent, 87 Nev. ---, 482 P.2d 819 (1971): 'Precedents of this court establish beyond cavil that it is the prerogative of the trier of fact to evaluate the credibility of any witness's testimony, and to reject it, at least where the testimony of the witness is contradicted as in and shall proceed cautiously, yielding incredible, or conflicts with other evidence or inferences arising from evidence.' However, as we also pointed out in Ewing v. Sargent, a jury 'may not arbitrarily reject credible, uncontradicted testimony.' See also: Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969); cf. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968); J. Wigmore, Evidence, § 2495, at 306 (3rd ed. 1940).
The minor appellant, as a guest in Strasdin's car, is entitled to recover if the record, reviewed in the light of these principles, unequivocally shows that Mills was negligent and a proximate cause of the accident, regardless of any negligence and causation on the part of Strasdin. Lee v. Baker, 77 Nev. 462, 465, 366 P.2d 513, 514 (1961).
2. NRS 484.319 imposed upon respondent Mills a duty to stop 'at the entrance' to Scheckler road, and to yield the right of way to other vehicles 'approaching so closely on such through highway as to constitute an immediate hazard.' 1 In Botts v. Bushton, 63 Nev. 426, 172 P.2d 147 (1946), this court stated that it was the disfavored driver's duty 'not only to stop at the stop sign, but also to look carefully' and permit the favored driver to pass, unless the situation was 'such as to clearly indicate that she could cross with a fair margin of safety.' 63 Nev., at 438, 172 P.2d at 153. In substance, appellant's counsel contends respondent, having a duty to stop and look, is chargeable with negligence as a matter of law, because she must be presumed to have seen 'that which was within the sight and range of vision.' Los Angeles & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224, 234 (1942). Numerous authorities support appellant's contention that, when there is a duty to look, it is negligence as a matter of law not to see that which is in plain view. 2
Respondent's counsel urges that this rule is not necessarily applicable to this case because, he suggests, the jury might have believed that Strasdin was so far down Scheckler as not to have been in plain view when Mills entered the intersection. Respondent's paramount contention, however, is that any negligence of Mills in failing to look effectively was not necessarily the...
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