Pagni v. City of Sparks

• Decision Date: 06 February 1956
• Docket Number: No. 3870,3870
• Citation: 293 P.2d 421,72 Nev. 41
• Parties: Pete S. PAGNI and Millicent Pagni, Husband and Wife, Appellants, v. CITY OF SPARKS, Nevada, a municipal corporation, and Leland Masini, A. Riparbelli and Elio Martini, Respondents.
• Court: Nevada Supreme Court

Page 421

293 P.2d 421

72 Nev. 41

Pete S. PAGNI and Millicent Pagni, Husband and Wife, Appellants, v. CITY OF SPARKS, Nevada, a municipal corporation, and Leland

Masini, A. Riparbelli and Elio Martini, Respondents.

No. 3870.

Supreme Court of Nevada.

Feb. 6, 1956.

C. Lester Zahniser, Sparks, Martin J. Scanlan, Reno, for appellants.

Leslie B. Gray, Reno, John G. Spann, Sparks, John Gabrielli, City Atty., Sparks, Reno, for respondent.

BADT, Justice.

The main question raised by this appeal is whether the trial court abused its discretion in vacating the jury's verdict for the plaintiffs and granting the defendants a new trial.

This is the third appeal recently reaching this court in which damages have been sought by reason of alleged negligence of the municipal defendant and its contract garbage haulers in the operation of its trash and garbage dump, it being asserted in each case that the dump was so operated as to constitute a nuisance with resulting damage to the respective plaintiffs. In City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140, a jury returned a verdict of $1,000 damages for the plaintiffs, the defendant city appealed and we affirmed the judgment entered upon the verdict. In Jezowski (formerly Mrs. Fields, the plaintiff in the earlier action) v. City of Reno, 71 Nev. ----, 286 P.2d 257, the jury returned a verdict for the defendant, the plaintiffs appealed and we again affirmed. In the present case the jury returned a verdict of $1 general damage and $1,152 special damages, and the trial court granted defendants' motion for new trial. This appeal is from that order. The function of this court on such an appeal is well recognized in this state. In Arrowhead Freight Lines v. White, 71 Nev. ----, 287 P.2d 718, a jury's verdict in favor of defendants was vacated, a new trial ordered upon the grounds of insufficiency of the evidence etc. and the plaintiff appealed. We said there: 'The law of Nevada regarding such an appeal is well digested in Nevada Rock & Sand Co. v. Grich, 59 Nev. 345, 365, 93 P.2d 513, 521. The question is not whether we, as an appellate court, on the record before us would have reversed the jury's verdict as without evidentiary support. The question, rather, is whether upon that record the trial court can be said to have abused its discretion in granting new trial. As stated in Treadway v. Wilder, 9 Nev. 67, 70, 'It must be borne in mind that the nisi prius courts in reviewing the verdict of juries are not subject to the rules that govern appellate courts. They may weigh the evidence and if they think injustice has been done grant a new trial where appellate courts should not or could not interfere.' We must, then, respect not the jury's verdict but the trial court's judgment (that the evidence clearly preponderates against the verdict or that it would result in injustice) unless that judgment is clearly wrong.' This in turn was followed in the recent case of Aeroville Corp. v. Lincoln County Power District, 71 Nev. ----, 290 P.2d 970.

It is true that the grounds for defendants' motion for new trial were stated to be the jury's manifest disregard of the instructions, excessive damages, insufficiency of the evidence, that the verdict and judgment were against law and errors in law occurring at the trial, and it is likewise true that the trial court simply entered its order granting a new trial without stating any of the reasons for such order. Appellants assert that under the requirements of § 8877, N.C.L.1929, it was error for the court to fail to state in writing the grounds upon which it granted the new trial. In the amended section 9385.53, N.C.L.1931-41 Supp., the mandatory language was changed to permissive language with reference to stating the reasons for the order. The matter in any event is now governed by Rule 59, N.R.C.P., which omits the requirement entirely.

We turn then to the evidence to ascertain whether the new trial order finds support under the rules enunciated above. Did the trial court abuse its discretion in granting a new trial? Was the judgment of the trial court in granting a new trial clearly wrong--in holding (as we must presume it did) that the evidence clearly preponderated against the verdict, or that it would result in injustice?

Our conclusion is that the order finds ample support.

Plaintiffs and their witnesses testified to the constant escape of papers, cartons, debris, trash and tin cans from both the dump used by the city's contract haulers and the dump to which private individuals were permitted to haul. These are referred to, respectively, in the evidence and marked upon the map as the existing city dump area and the public dumping area. Plaintiffs introduced in evidence a great number of photographs showing cartons, papers, tin cans etc. upon their land, against their fences and in their irrigating ditches, and there was evidence that some of this material was seen blowing in the direction of plaintiffs' land from the dumps. Plaintiffs claim that this would not occur if the refuse were promptly burned. They also asserted that hogs were permitted to run about the dump and that they trespassed upon plaintiffs' lands and that plaintiffs were compelled on occasions to drive them out. While they asserted that smoke and odors were blown upon their lands from the dump, they did not claim this as an item of damage. The main special damages claimed by plaintiffs were the necessary expenditure of about an hour a day over a long period of time which made up, on the basis of $1 per hour, the special damages found by the jury in the sum of $1152.

Defendants' witnesses ¹ included the present mayor of Sparks (who had held office as mayor and as councilman for over twenty years), a former mayor (who had served ten years as mayor, eight years as councilman and four years as chairman of the local school board), a former mayor (who had served as such for four years), the city engineer (who had served as such officer for some thirteen years), the city building and sanitary inspector, the caterpillar and bulldozer operator who operated his equipment at the dumps, neighbors of the plaintiffs, and the present franchise haulers and their predecessors. Virtually all of these witnesses were long time residents of Sparks, and their qualifications were for the most part either admitted or duly...