Mahan v. Hafen

• Decision Date: 25 April 1960
• Docket Number: No. 4254,4254
• Citation: 76 Nev. 220,351 P.2d 617
• Parties: L. W. MAHAN, individually, and as Administrator of the Estate of Robert Mahan, Deceased; Larry Taylor; Cecil E. Cluff, individually, and as Administrator of the Estate of Phillip Cluff, Deceased, Appellants, v. Max HAFEN, Respondent.
• Court: Nevada Supreme Court

Page 617

351 P.2d 617

76 Nev. 220

L. W. MAHAN, individually, and as Administrator of the Estate of Robert Mahan, Deceased; Larry Taylor; Cecil E Cluff, individually, and as Administrator of the Estate of Phillip Cluff, Deceased, Appellants, v. Max HAFEN, Respondent.

No. 4254.

Supreme Court of Nevada.

April 25, 1960.

Rehearing Denied May 17, 1960.

Foley Brothers, Las Vegas, for appellants Mahan and Cluff.

Earl & Earl, Las Vegas, for appellant Taylor.

Morse, Graves & Compton and James H. Phillips, Las Vegas, for respondent.

McNAMEE, Chief Justice.

This is an appeal from a judgment on a jury verdict in favor of respondent. Two actions for wrongful death and one for personal injuries, all resulting from the same mishap and each based on a charge of negligence, were consolidated for trial in the court below.

On December 12, 1956 six college students were traveling on U. S. Highway 91 from Provo, Utah, to their homes in Los Angeles, California, for Christmas vacation. As they were motoring along in an automobile owned by the father of the driver, Joan Sperry, at a point approximately one mile southwest of Mesquite, Nevada, they ran into the rear end of a truck being driven by respondent which was loaded with bales of hay. Respondent at the moment of the collision was leaving the highway on the left thereof and entering a side road. The accident happened during daylight. As a result of the collision Joan Sperry and two other passengers were killed. Plaintiffs below were a surviving passenger, Larry Taylor, and the legal representatives of said two other passengers. Joan Sperry's personal representative was not a party to the action.

One of the errors assigned by appellants was the failure of the trial court to grant their motion for judgment notwithstanding the verdict or in the alternative a new trial. It is their contention that the evidence shows without conflict that respondent was negligent in that he failed to give a lefthand signal 300 or more feet before commencing to turn, that he failed to look to the rear immediately before making the turn, and that he was in the process of cutting the corner of the intersection at the time of the collision, the first two alleged acts of negligence being in violation of state law. Respondent on the other hand contends that these as well as the question of proximate cause were all factual questions based on conflicting evidence, and thus the conclusion of the jury in favor of respondent cannot be set aside on appeal.

The transcript of the evidence contains testimony of respondent that he did not give the signal of his intended left-hand turn (the signal was a standard mechanical arm operated by a lever on the dash board of the truck) until he was 150 or 200 feet from the intersection, that he did not look to the rear after he gave the turn signal, and that he started his left turn some 50 to 75 feet before he reached the intersection. On the other hand the transcript discloses that respondent also testified that he was 300 or 400 feet from the turnoff when he raised the signal arm, and that thereafter when he was '100 feet, probably a little more' from the turnoff, he looked back through his rear view mirror. Oscar Abbott, a deputy sheriff who arrived at the scene shortly after the collision, testified that respondent had told him there that he had not looked back to see if a car was coming, but respondent denied making such a statement to Abbott. With respect to cutting the corner, exhibits in evidence, together with respondent's testimony in explanation thereof, created the possibility that reasonable men might differ as to whether or not respondent was making a proper turn at the time of the accident. All of the appellants' assertions of negligence on the part of respondent became factual issues, the determination of which was solely the function of the jury.

Even if the jury considered that the respondent was negligent in one or more respects (which cannot be ascertained because of the absence of special interrogatories), nevertheless unless such negligence was a proximate cause of the accident, liability of respondent would not result. Smith v. Taylor-Button Co., 179 Wis. 232, 190 N.W. 999; Dieckmann v. Signorini, 47 Cal.App.2d 481, 118 P.2d 319. Proximate cause is 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. Rimco Realty & Inv. Corp. v. La Vigne, 114 Ind.App. 211, 50 N.E.2d 953. No liability attaches unless there is a causal connection between the negligence and the injury. Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171; Smith v. Taylor-Button Co., supra.

Where two or more causes proximately contribute to the injuries complained of, recovery may be had against either one or both of the joint tort-feasors. Smith v. Payne, 85 Ga.App. 693, 70 S.E.2d 163. If the jury found that Joan Sperry and respondent were both negligent, then, to relieve respondent of liability to these appellants it must have found that Joan Sperry's negligence was the sole proximate cause of the accident. Whether respondent's negligence, if any, was a proximate cause of the accident is a factual matter regardless of whether the negligence arose by violation of statute or by ordinary negligence. Styris v. Folk, 62 Nev. 208, 209, 139 P.2d 614, 146 P.2d 782. 'Negligence per se and proximate cause are two separate and distinct issues. While one is presumed as a matter of law, the other must, nevertheless, be proved as a matter of fact.' Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d 336, 339.

Evidence was presented to the jury that the automobile driven by Joan Sperry was going somewhere between 50 and 90 miles per hour before she applied her brakes some 144 feet before the point of impact; that back up the road 500 feet from this point there was a highway sign indicating a T type of intersection. She attempted to pass to the left despite the said intersection sign. The six students were laughing and singing while and after passing this sign. It was daylight and the truck was plainly visible, proceeding at a speed of from 5 to 10 miles per hour.

Under this evidence we cannot say that only one inference may be drawn as appellants contend. Thus the question of whose negligence was the proximate cause of the accident, if in fact respondent was negligent, was for the jury. That as triers of the fact we might have concluded that the respondent was negligent and that his negligence was a concurring proximate cause does not permit us on appeal to set aside the jury's contrary finding. Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850.

Error is assigned in the court's failure to give the following instruction:

'You are instructed that ordinary care requires that the driver of any vehicle making a left turn into an adjoining roadway must keep to the right of the center line of the highway along which he has been proceeding, until he passes the center of the adjoining roadway. Ordinary care further requires that the driver...