Nevada Rock & Sand Co., Inc. v. Grich

• Decision Date: 05 September 1939
• Docket Number: 3272.
• Citation: 93 P.2d 513,59 Nev. 345
• Parties: NEVADA ROCK & SAND CO., Inc. v. GRICH.
• Court: Nevada Supreme Court

93 P.2d 513

59 Nev. 345

NEVADA ROCK & SAND CO., Inc. v. GRICH.

No. 3272.

Supreme Court of Nevada

September 5, 1939

Appeal from District Court, Second Judicial District, Washoe County B. F. Curler, Judge.

Action by Mike Grich against the Nevada Rock & Sand Company, Inc. for injuries suffered in an automobile accident. From an order vacating verdict for defendant and granting new trial defendant appeals.

Affirmed.

Morley Griswold and George L. Vargas, both of Reno, for appellant.

H. R. Cooke, of Reno, for respondent.

TABER Chief Justice.

The parties will sometimes be referred to as plaintiff and defendant. In the court below appellant was defendant, and respondent plaintiff.

In December, 1935, appellant entered into a contract with the State of Nevada for the grading and repairing of a section of public highway, approximately five miles in length, in the vicinity of Virginia City. At the time of the accident hereinafter mentioned appellant, pursuant to said contract, was working on said highway about one mile southerly from said city. On April 19th, 1936, and for some time prior thereto, plaintiff, his partner and brother-in-law Frank Putzell, and George Krasevac, nephew of Putzell and an employee of the partners, were and had been working a mine situated near said highway, and about three miles southerly from said city. These men, for a considerable period of time prior to said 19th, day of April, had been traveling back and forth between Virginia City and the mine several times practically every day. About five o'clock in the afternoon of said day they were returning from the mine to Virginia City in Krasevac's automobile, a 1929 Ford roadster, the car in which they regularly made their trips between Virginia City and the mine. When they reached a point a short distance from where the accident happened, they stopped the car because defendant's scarifier, with bulldozer in front driven by Kenneth Wood, was approaching from the opposite direction. They remained there several minutes until Mr. Wood, after approaching to within a short distance of them, turned his equipment onto a pioneer road just above the old highway, which defendant was grading, leveling and widening. After proceeding about fifty feet on said pioneer road, Mr.

Wood, who was then facing towards Virginia City, turned part way around in his seat, faced the three men sitting in said roadster and made a signal with his left arm and hand. Appellant claims that this signal was given to Mr. Whiting, another of its employees. Respondent, on the other hand, maintains that the signal was made to him and his companions. In any event, just after said signal was given, Krasevac, who was driving, started the car and proceeded some fifty feet or more, when the car left the road, and after moving down the steep hillside a short distance, overturned a number of times, resulting in serious personal injuries to plaintiff. When the Wood signal was given and when the accident occurred, Mr. Whiting, in charge of a caterpillar with Le Tourneau scraper attached, was north of Mr. Wood in the direction of Virginia City, while plaintiff and his companions were to the south of him.

Plaintiff alleged that his injuries were caused by defendant's negligence. This was denied by defendant, who also alleged that plaintiff was guilty of contributory negligence, and that his said negligence was the proximate cause of the injuries. A jury trial was had in Department No. 2 of the Second Judicial District Court, Washoe County, resulting in a general verdict for the defendant. Plaintiff moved for a new trial, which was granted, and the present appeal is from the order granting plaintiff a new trial.

In rendering its decision granting plaintiff a new trial, the trial court said in part:

"The facts of this case are that on the day when this accident occurred the employees of the defendant in the action were working upon the road at the point where the accident occurred and were cutting down the hillside above the roadbed and were scraping the dirt and rock that came from the cut above off from the highway onto the bank, widening the road. The evidence establishes, I think without any contradiction that the plaintiff, who was riding with the other two parties in the car that went over the grade, came to a point on the grade a short distance from where the accident occurred. That they then saw Mr. Wood, who was an employee of the defendant and who was in charge of the construction of that road, coming along toward them with a tractor, a bulldozer, and pushing the rock and dirt from the place where it had been deposited by cutting above, or rather, from the inner side to the outer side of the road.

"The evidence establishes, I think, that the parties in the car stopped and that Mr. Wood proceeded to a point near them and he turned from the roadway and went up on a road above that was used for the purpose of cutting the bank. And that when he got upon the bank he turned and faced the parties in the car and made a sign with his arm, waving it, which they construed to be a direction to proceed. I think Mr. Wood said that he did not make that to the parties in the car. But it was the same sign that he had used previously when he directed these same parties to proceed over the road while it was in the process of construction, and he admitted that he was facing the parties in the car when he made the sign, and he illustrated upon the stand the method in which he made the sign and that method which he indicated could not be construed as anything else but a direction to the parties in the car to proceed.

"The evidence, to the mind of the Court, establishes the fact that they proceeded with due caution, not at a rapid rate of speed, and that when they reached this point just before they stopped the car, the car slid over the grade, two of the parties jumping from the car, and the plaintiff in this action being carried down the hill by the car and injured.

"While there was considerable conflict of testimony in the case, it appears to the mind of the Court that in the giving of that signal the employee charged with the duty of directing traffic over the road was guilty of negligence. And under all the authorities cited the Court is of the opinion that the parties driving the car had a right to act upon that signal. That it was in effect a declaration to them, 'Proceed, the road is safe,' and that there was nothing in the character of the road at that particular time to warn them of the situation, as they had been going over it for days."

Following said decision, a written order granting a new trial was filed, from which we quote the following: "Wherefore, and it appearing to the Court that there was a manifest disregard by the jury of the instructions of the Court and that the evidence is insufficient to justify the verdict and that said judgment and verdict is against law, ***" The main subjects of controversy are these: (1) The testimony of Kenneth Wood; (2) the condition of the highway at and near the point of the accident, and in particular, whether there was a soft shoulder at that point which gave way under the weight of the roadster; (3) whether the car in which plaintiff was riding stopped just before leaving the road, or was driven across and off the highway without stopping.

Kenneth Wood, who was in defendant's employ at the time of the accident but not at the time of the trial, was called as a witness by plaintiff, and the important part of his testimony was as follows:

"Q. What kind of signals did you give? Just indicate to the jury. A. I gave a signal to Mr. Whiting to come through.

"Q. What kind of a motion of your hand? Indicate to the jury, if you will, what kind of a motion of the hand you gave? A. Would be a circle (indicating).

"Q. Which hand did you use? A. That hand (indicating).

"Q. Which way were you facing when you gave that signal? A. I was facing on the side, like that (indicating)

"Q. With reference to where Putzell and Grich and the car was down on the old road bed, which way were you facing? A. I was facing toward them.

"Q. This man Whiting was over some distance to the northwest of that, wasn't he? A. To the north, yes.

"Q. He would be in the back, with the way that you were standing at the time you gave the signal? He would be behind you? A. Not back, no.

"Q. You were facing the Grich car? A. Yes.

"Q. Facing them sort of in this position and then you gave the signal about the way I am indicating?

"Mr. Griswold: Object to that as leading and suggestive with reference to that question.

"The Court: The objection is sustained.

"Mr. Cooke: (Q) Will you stand up in front of the jury and show them how you were standing, or what your position was at the time you gave the signal? A. I was sitting as I am now.

"Q. And you were facing the Grich car, you told us? A. With my face to them, yes.

"Q. And then you motioned with your left hand how? Would you show that again? A. Like this (indicating).

"Q. Could you see what they did immediately upon your making that motion? A. No I did not.

"Q. Whether they started up or not? A. No, not at the time.

"Q. How many motions of your hand did you give or make? A. Just one.

"Q. Just the one? A. Yes.

"Q. On previous occasions when Grich and his companions were going backward and forward over that road, do you recall whether or not you gave them any signals to stop or start? A. I would not say whether I have or not.

"Q. You would not say whether you had or not? A. No, I would not say."

Plaintiff Putzell, Krasevac and a Mr. Stack all testified positively that the Wood signal was made to the three men in the roadster. Mr. Wood, as has been seen, testified that he gave that signal to...