Mikulich v. Carner

• Court: Nevada Supreme Court
• Writing for the Court: BADT; It is next contended that even if the admission of the testimony was error, the same was harmless. Again McCleod v. Miller and Lux refutes this view. There Sanders
• Citation: Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873, 38 A.L.R.2d 1 (Nev. 1952)
• Decision Date: 13 February 1952
• Docket Number: No. 3640,3640
• Parties: , 38 A.L.R.2d 1 MIKULICH et al. v. CARNER et al.

Page 873

240 P.2d 873

69 Nev. 50, 38 A.L.R.2d 1

MIKULICH et al. v. CARNER et al.

No. 3640.

Supreme Court of Nevada.

Feb. 13, 1952.

Rehearing Denied May 28, 1952.

Clarence Sundean and Leo A. McNamee, Las Vegas, for appellants.

Morse & Graves, Las Vegas, for plaintiff and respondent.

Bryan & Cory and Edwin J. Dotson, Las Vegas, for defendant and respondent.

BADT, Chief Justice.

Respondent Mary Ann Carner was seriously injured while a passenger on a bus owned by appellant Sebastian Mikulich, doing business as Las Vegas-Tonopath-Reno Stage Line, and operated by appellant David Lee McConaghy. The injury occurred through a collision of the bus with a truck and semitrailer owned and operated by Dewane Baker. Baker was a defendant in the action, but no verdict was returned or judgment rendered against him. He is accordingly named herein as a respondent. The parties will be referred to as they appeared in the court below or by their names. Forest Elaine Purdy, who was also a passenger in the bus, was fatally injured in the same accident. An action brought by her father was tried jointly with the present action and is embraced in the transcript before us, but is not involved in the present appeal. The plaintiff based her right to recovery on the alleged joint, concurrent and simultaneous negligence of all of the defendants. The status of the plaintiff as a passenger on the bus and the operation of the bus by the defendant bus driver and the defendant bus company as a common carrier and the ownership and operation of the truck and semitrailer by Baker are admitted by the pleadings. The pertinent facts are as follows:

The bus was on a scheduled trip from Las Vegas to Reno, and was carrying nineteen passengers. At about 9:20 p. m., on August 10, 1947, on Highway 95, approximately four and one-half miles south of Beatty, the bus driven by McConaghy was proceeding north and the truck, or tractortruck and semitrailer was being driven south by Baker. The trailer was loaded with about eleven tons of pumice. When the respective drivers such noticed the approaching lights of the other vehicle, the north bound bus was entering into a wide gradual curve bearing easterly, that is to say, to the bus driver's right, and the south bound truck and trailer were on what is referred to as a straightaway, north of this curve. At this point the two vehicles were approximately 1,000 to 1,200 feet apart (according to Baker) or 1,800 feet apart (according to McConaghy). The truck was traveling about thirty-five miles an hour and the bus about fifty miles an hour. As the two vehicles approached each other and when they were at a distance of approximately 400 feet apart, both drivers almost simultaneously operated their light switches to bring their lights from 'high beam' to 'low beam.' The bus' headlights went to low beam, but the bus driver testifies that the truck lights changed to a single bright light. This was corroborated by a subsequent test of the truck's lights. The bus driver further testifies that, confronted with such single bright light and being unable to determine what it was or what its position on the vehicle was or what kind of vehicle was approaching him, he switched back to high beam to see the side of the road and to see what was behind the single bright light; that he did this for the protection of his passengers; that he then ascertained for the first time that the vehicle was a truck, that it was in part on his side of the road and was headed at a slight angle toward his bus. He further testified that at that point the two vehicles were about 100 to 125 feet apart (Baker says about 400 feet, later estimated it at 300 feet) when he switched his lights back to high beam, and that after switching to high beam and identifying the approaching vehicle as a truck and seeing its position on the road, he applied his brakes, reducing his speed by one half or two thirds, and drove to the right side of the highway until his right wheels were on the gravel shoulder.

Although there is some conflict, it is pretty clearly established that the truck was encroaching to some extent on the bus' lane. The tractor-truck, which was only six feet wide, cleared the bus, but the forward left corner of the trailer, which was eight feet wide, struck the forward end of the left side of the bus and ripped parts of it away along virtually its entire length. The bus' width was eight feet. Under a stipulated formula as to the number of feet a vehicle would travel under a given speed in miles per hour, it would appear that from approximately one to three seconds elapsed from the return of the bus' lights to high beam to the moment of impact.

Some twenty witnesses testified, the case took some thirteen days to try and the transcript of the testimony embraces 820 pages. Many photographs of the vehicles and of the highway were received in evidence. We need, however, recite only so much of the evidence as is necessary to the point determined in this opinion. The drivers of the two vehicles were the only eye witnesses to the collision.

Dewane Baker the truck driver and one of the defendants, was called by the plaintiff as an adverse witness. He testified in detail as to the size, measurements, capacity, etc., of his truck and trailer; as to all of his activities on the day of the accident; the times of the day involved; the nature of the headlights, taillights and clearance lights on his vehicles; his trip south with his load preceding the accident; the place of the accident in miles from Beatty; the speed of his own truck and estimated speed of the bus; the condition of the dividing line down the center, the nature of the highway with respect to being straight or curved; the distance from him of the bus lights when first observed; the movement of the bus' lights across his windshield as the bus came around the turn; the dimming of the bus lights and the dimming of his own truck lights; the fact that the witness switched his lights back to high and then to low again; the position of his own truck and the position of the bus on the highway ('I could determine where [the bus] was on the highway * * * until he brightened his lights the last time and left them on * * * We were both in normal position * * * on our right sides of the road.'); that he applied his brakes and was engaged in staying where he belonged; that, as a description of the collision, there was 'just a loud crash and we were past, we were separated', that the left front corner of his trailer hit the bus. He then described bringing his truck and trailer to a stop and what was done thereafter. He was unable to testify of his own knowledge as to where his truck and trailer were at the moment of the impact on the highway. He was then asked: 'From the time that the bus driver put his lights back on bright to the time of the impact were you or were you not--were you blinded by those lights?' And he answered, 'I absolutely was.' He then stated that after he was blinded by the bus lights he looked 'at the right side of the road alternately and back at the bus to keep him in location, but I was blinded so bad that I couldn't determine his location.' He testified that he did not know whether he attempted in any way to veer his vehicle to the right of the highway nor could he say what the bus driver did because he, Baker, was blinded.

All of the foregoing testimony was given without objection. The following then took place:

'Q. Mr. Baker, do you have any opinion, please answer this question yes or no, as to what caused that accident, that collision? A. Yes.

'By Mr. Sundean: Object on the ground it is calling for a conclusion. It is a matter entirely in the province of the jury.

'By the Court: Objection sustained.

'By Mr. Graves:

'Q. Do you know what caused the accident, Mr. Baker?

'By the Court: He can answer it yes or no, if he knows what caused the accident. A. Yes.

'By Mr. Graves:

'Q. Please state.

'By Mr. McBain: I object, Your Honor, calling for a conclusion of law, invading the province of the jury.

'By the Court: That objection is overruled. He says he knows what caused it.

'By Mr. Graves:

'Q. What caused it? A. Bright lights.

'By Mr. Sundean: I will move to strike that answer on the ground it is incompetent, irrelevant and immaterial.

'By the Court: It may stand.

'By Mr. Graves:

'Q. Now, you said bright lights. What do you mean 'bright lights'? A. Bright lights on the part of the bus.'

Appellants assign the admission of this testimony, over their objection, as error, and we are forced to the conclusion that it was error to overrule the objection above recited.

The general rule that a witness must testify to the evidentiary facts and not to his conclusion, opinions or inferences has been so long and so well recognized by this and all other courts in this country as not to require discussion. To this general rule however, there are certain exceptions. The well recognized exception with reference to expert testimony is not here involved.

It is first insisted that Baker's statement that the bright lights on the bus caused the accident was what is often termed a shorthand statement of the facts, but it is clear that this statement does not come within such category. See concurring opinion in State v. Teeter, 65 Nev. 584, 649, 200 P.2d 657. The witness' statement that he was 'blinded' by the bus' lights furnishes a more accurate illustration of a conclusion which is a shorthand statement of the facts.

It is next insisted by respondent that the testimony of Baker that the bus' bright lights caused the accident comes within the exception to the general rule, under which a witness may testify to such conclusion when the condition of things is such that they cannot otherwise be reproduced and made palpable to the jury. For a statement of this rule she cites Atchison, T. & S. F. R. Co. v. Miller, 39 Kan. 419, 18 P. 486. It is often stated that this exception is...