Roche v. Schartz, 5103

Decision Date04 November 1966
Docket NumberNo. 5103,5103
Citation82 Nev. 409,419 P.2d 779
PartiesPaul A. ROCHE, Guardian of the Person and Estate of John B. Roche, an Incompetent Person, Appellant, v. Thon Patrick SCHARTZ, Respondent.
CourtNevada Supreme Court

Peter Echeverria, Reno, for appellant.

Vargas, Dillon, Bartlett & Dixon and Albert F. Pagni, Reno, for respondent.

OPINION

ZENOFF, District Judge.

This appeal is taken from an order of the court below granting an involuntary dismissal under Rule 41(b), 1 Nevada Rules of Civil Procedure. Collaterally, appellant also contends that the respondent waived his privilege to preclude his wife's testimony when he agreed that her deposition might be taken before trial, and it was taken.

The action arose from an auto accident in 1957. John Roche, a passenger in a Jeep owned by the State of Nevada, was rendered incompetent by the accident, and this action was commenced by Paul Roche, his guardian ad litem. Defendant Thon Patrick Schartz was the driver of the other vehicle.

At the close of plaintiff's case in a jury trial the court granted defendant's motion for an involuntary dismissal. The notice of appeal subsequently was filed by Roche.

There were no eye witnesses to the accident. All of the evidence is circumstantial based on the physical facts available after the accident. Schartz has no recollection of events leading to the collision.

On November 2, 1957, Schartz and his wife left Great Bend, Kansas, en route to Reno, Nevada, to attend a convention via Albuquerque, New Mexico, and Las Vegas, Nevada. They were driving a 1956 Mercury automobile. The collision occurred approximately 6 1/2 miles west of Fallon (about 47 miles from Reno), sometime between 1:00 P.M. and 1:55 P.M., November 4. The road was slippery from rain, snow and slush. At least one of the tires on the Mercury was smooth. Schartz was scheduled to attend a meeting in Reno at 2:00 P.M. He left Las Vegas early that morning, but was delayed because he initially became lost and some time elapsed before he was directed properly. He testified that at times he drove 70 to 75 miles per hour and at other times 40 to 50 miles per hour.

In the meantime, Leslie Lewis and John Roche, employees of the Nevada State Highway Department, were working along U.S. Highway 95 about seven miles southwest of the scene of the accident. Highway 95 is the main artery from Las Vegas to Reno and goes through Fallon. Lewis and Roche were called off work because of the adverse weather conditions and were told to return to the Highway Department office in Fallon. Lewis was the driver of the Jeep, Roche a passenger. Lewis was killed in the accident.

Plaintiff was driving generally east toward Fallon and defendant west toward Reno. There is a curve near the scene of the collision. A side road intersects a short distance from where the cars came to rest. All of the wreckage and debris was on plaintiff's side of the highway, although no precise point of impact could be determined. No skid marks were found. Both cars ended up a considerable distance apart on plaintiff's side of the highway. Damage to the Jeep was on the driver's left front including the door, while the Mercury's damage was primarily to the front of the vehicle. A trail of oil approximately eight feet south of the center of the highway led to a puddle of oil under the Mercury.

1. The foregoing facts were constructed from the testimony of Schartz and other witnesses. Appellant contends that the physical facts create a reasonable inference that defendant was negligent. Defendant maintains that it is just as reasonable to infer that Lewis and Roche drove up a side road to deposit some lunch garbage and then returned to the main highway into Schartz's line of travel.

Defendant points to the physical location of the damage on both automobiles, the side road leading to the garbage dump at the accident scene, and that when Lewis and Roche were secured from work they were to remain and clean up the area and then were free to go, thus, the theory that the two men drove to the dump to dispose of the remnants of their lunch.

However reasonable the inferences which could be drawn in favor of the defendant, nevertheless, we adhere to the well-established doctrine that for the purposes of a dismissal under NRCP 41(b) plaintiff's evidence and all reasonable inferences that can reasonably be drawn from it must be deemed admitted and the evidence must be interpreted in the light most favorable to the plaintiff. Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955), and Schmidt v. Merriweather, 82 Nev. --- 418 P.2d 991 (1966), and cases cited therein. Physical facts may justify a jury finding that defendant is guilty of negligence and negligence may be inferred from the facts and circumstances of each case. Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728 (1945); Mitchell v. Stolze, 375 Pa. 296, 100 A.2d 477 ...

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5 cases
  • Jeep Corp. v. Murray
    • United States
    • Nevada Supreme Court
    • October 29, 1985
    ...at 927 (application for judgment n.o.v. should be refused where there is evidence tending to support the verdict); Roche v. Schartz, 82 Nev. 409, 412, 419 P.2d 779, 780 (1966) (where motion for dismissal pursuant to NRCP 41(b) is made, evidence must be interpreted in light most favorable to......
  • Stackiewicz v. Nissan Motor Corp. in U.S.A., 14084
    • United States
    • Nevada Supreme Court
    • August 7, 1984
    ...of the one party and against the other. Conflicting inferences from known facts are for jury determination. Roche v. Schartz, 82 Nev. 409, 412-13, 419 P.2d 779, 781 (1966). Applying these principles to the evidence presented in the case at bar, we conclude that the jury's verdict was permis......
  • Estate of Irvine v. Doyle
    • United States
    • Nevada Supreme Court
    • December 10, 1985
    ...from it must be deemed admitted, and the evidence must be interpreted in the light most favorable to the petitioner. Roche v. Schartz, 82 Nev. 409, 419 P.2d 779 (1966); see also Stackiewicz v. Nissan Motor Co., 100 Nev. 443, 686 P.2d 925 (1984); Corn v. French, 71 Nev. 280, 289 P.2d 173 (19......
  • Vancheri v. GNLV Corp., 18899
    • United States
    • Nevada Supreme Court
    • June 30, 1989
    ...in his favor and not pass upon the credibility of witnesses nor weigh the evidence. Id., 441 P.2d at 624; Cf. Roche v. Schartz, 82 Nev. 409, 412, 419 P.2d 779, 781 (1966) (judge not to weigh or compare inferences in favor of one party and against other, conflicting inferences from known fac......
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