Rocky Mountain Produce Trucking Co. v. Johnson

• Decision Date: 20 February 1962
• Docket Number: No. 4405,4405
• Citation: Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198 (Nev. 1962)
• Parties: ROCKY MOUNTAIN PRODUCE TRUCKING COMPANY, Radio Cab Company of Ely, Nevada, Dorothy Bledsoe (Gray) and V. P. Ence, Appellants, v. Donna M. JOHNSON, widow of Carl E. Johnson, Deceased, and Tommy Carl Johnson, Debra K. Johnson, James Richard Johnson, Carl E. Johnson, minor children of Deceased, Carl E. Johnson, by their Mother and Guardian Ad Litem, Donna M. Johnson, Respondents.
• Court: Nevada Supreme Court

Page 198

369 P.2d 198

78 Nev. 44

ROCKY MOUNTAIN PRODUCE TRUCKING COMPANY, Radio Cab Company of Ely, Nevada, Dorothy Bledsoe (Gray) and V. P Ence, Appellants, v. Donna M. JOHNSON, widow of Carl E. Johnson, Deceased, and Tommy Carl Johnson, Debra K. Johnson, James Richard Johnson Carl E. Johnson, minor children of Deceased, Carl E Johnson, by their Mother and Guardian Ad Litem, Donna M Johnson, Respondents.

No. 4405.

Supreme Court of Nevada.

Feb. 20, 1962.

Rehearing Denied March 14, 1962.

Goldwater, Taber & Hill, Reno, Gray and Horton, Ely, for appellants.

A. D. Demetras, Ely, Belli, Ashe & Gerry, San Francisco, Cal., Bridwell & Reynolds, Salt Lake City, Utah, for respondents.

THOMPSON, Justice.

Mrs. Johnson, widow of Carl Johnson, deceased, for herself and as guardian ad litem of their four minor children, commenced a wrongful death action against Rocky Mountain Produce Trucking Company, its agent-driver V. P. Ence, and Radio Cab Company of Ely, Nevada, and its agent-driver Dorothy Gray. The basis for the suit was the alleged negligent and wanton misconduct of each defendant. General damages of $200,000, and punitive damages of $50,000 were sought. The decedent was a passenger in a car owned by him, but driven by Gordon Hildebrand.

The defendants answered the complaint by denying the charge of negligent and wanton misconduct, and pleaded three affirmative defenses; first, that the death of Carl Johnson was solely and proximately caused by the negligence of Hildebrand; second, that the death of Carl Johnson was contributed to by his own negligent failure to keep a proper lookout and to warn Hildebrand of any impending danger; and, third, that the negligence of Hildebrand was imputed to the deceased, Carl Johnson, by reason of the latter's ownership of the car in which they were riding. On the issues thus joined, the case was tried before a jury, and a verdict returned in favor of the defendants and against the plaintiffs.

The plaintiffs moved for a new trial. They contended that the trial court erred in the following particulars:

(1) In failing to give their requested instruction advising the jury that the contributory negligence of the driver Hildebrand would not bar a recovery from the defendants if the latter's misconduct was found to have been wanton. Coupled with this complaint was the contention that error occurred when the court instructed the jury that the contributory negligence of Hildebrand, if found to exist, would bar a recovery by plaintiffs.

(2) In failing to give their requested instruction regarding the 'sudden peril' doctrine.

(3) In giving an instruction advising the jury that a rebuttable presumption existed that Hildebrand drove the car, as the agent of Johnson, the passenger-owner; and that if Hildebrand was found, by a preponderance of the evidence, to have been negligent, and if said presumption was not rebutted, his negligence was to be imputed to the owner, Johnson.

(4) In giving an instruction regarding the 'range of vision rule,' i. e., that it is the duty of a driver in the nighttime to keep his vehicle under such control that he could stop within the distance the highway is illuminated by its lights.

The lower court granted a new trial for the sole reason that it had failed to intruct the jury that the contributory negligence of the driver Hildebrand would not bar a recovery from the defendants, if the latter's misconduct was found to have been wanton. The court acknowledged that the instruction offered by plaintiffs in this regard was not correct, but believed it to be the court's duty to have modified and given such instruction in correct form. The court found all other claims of error above set forth, (2), (3) and (4) to be without merit. From such order granting a new trial, the defendants below have appealed.

I. The posture of this case on appeal: As noted, the lower court did not order a new trial because of the insufficiency of the evidence to justify the verdict. Rather, it did so for the sole reason that it had failed to instruct the jury on one phase of the plaintiffs' theory of the case, namely, that the contributory negligence, if any, of the driver of the car in which the decedent was a passenger, would not bar a recovery by the plaintiffs, the heirs of decedent, should the jury determine that the defendants, or either of them, had been guilty of wanton misconduct. Our concern, therefore, is to review the record and determine whether the trial court abused its discretion in granting a new trial, either for the reason which it assigned, or for any other valid reason. Cf. Nevada Rock & Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513; Arrowhead Freight Lines, Ltd. v. White, 71 Nev. 257, 287 P.2d 718; Pagni v. City of Sparks, 72 Nev. 41, 293 P.2d 421; Schopper v. Kelley, 75 Nev. 520, 347 P.2d 279.

With this in mind, we turn to a statement of the facts, with particular emphasis upon those facts most favorable to the plaintiffs below, and respondents here.

II. The facts surrounding the accident: At about 11:00 p.m. on October 27, 1957, a car owned by Carl Johnson and driven by Gordon Hildebrand ran into the left rear end of an International tractor and trailer owned by Rocky Mountain Produce Company, and driven by V. P. Ence. Both vehicles were headed north on U. S. Highway 93 toward Ely. At the time of this collision, a taxicab owned by Radio Cab company and operated by Dorothy Gray was also at the scene.

The collision occurred about four miles south of Ely, at which point, and for several miles each way, the highway ran in a generally north-south direction. It was paved, 32 feet wide, and separated into two lanes by a white dividing center line. The east shoulder of the road at the scene of the accident was graveled and dropped off sharply. The road was dry, straight, and slightly upgrade to the north.

Sometime before the collision, the tractor-trailer, northbound, had run out of fuel. Ence, the driver, pulled the rig toward the right shoulder of the road, and parked it with its left wheels on the pavement and its right wheels on the unpaved shoulder. He caught a ride to Ely, obtained fuel, and had returned in the taxicab driven by Dorothy Gray when the Johnson vehicle, driven by Hildebrand, came upon the scene. Ence had just completed refueling the tractor, had started the motor, and had pulled the rig forward three to five feet when the collision occurred.

The impact was of such force that the car was demolished, the spring hangers of the trailer's left rear springs were sheared off, and the left rear dual wheels suspended by said springs driven forward underneath the frame of the trailer. Carl Johnson was killed.

Johnson, Hildebrand and others had been on a hunting trip and were returning to Ely. They had been drinking beer during the afternoon and evening. About 25 miles before the scene of the accident, Johnson asked Hildebrand to drive because he, Johnson, was tired. Hildebrand did so. Johnson moved to the middle of the front seat, with another of the hunting party, Merlin Wilks, to his right and also in the front seat. Hildebrand believed that Johnson and Wilks fell asleep sometime before the accident.

The matters just related are not in dispute. However, the position of the taxi and tractor-trailer on the highway immediately before and at the time of collision were; also, the circumstances with reference to lights. In relating those circumstances, we shall refer only to the testimony most favorable to the plaintiffs' theory of the case.

About one mile before the scene of the accident, Hildebrand noticed the headlights of a car facing him. Hildebrand was then driving about 50 to 55 miles per hour. Those headlights were, thereafter, constantly within his view. At a point about one-quarter of a mile from them, he realized that the car was in his lane of traffic and at a standstill. He lowered his lights from high to low beam, illuminating the highway before him about 100 feet. He noticed that the lights of the car which he saw ahead of him were from the taxi which was parked alongside and to the west of the tractor in the northbound lane of traffic. He did not see clearance lights on the trailer. He reduced speed to about 15 miles per hour, pulled to the right, and then turned to the left when he saw the rear end of the trailer, in an attempt to avoid a collision. The right front of the car hit the left rear of the trailer. Such are the relevant facts, stated most favorably to the plaintiffs, from which we must resolve the legal issue regarding wanton misconduct. In the discussion to follow, we shall refer to the plaintiffs below, respondents here, collectively as 'Johnson'; the defendants below (principal and agent), appellants here, as the 'Taxi' and 'Rocky Mountain'; the decedent, Carl Johnson, as 'passenger-owner'; and the driver Gordon Hildebrand as 'Hildebrand.'

III. Was the issue of wanton misconduct one of fact or law? Before discussing this issue, we wish to resolve a confusion in the use of language. In Crosman v. Southern Pacific Co., 44 Nev. 286, 301, 194 P. 839, 843, this court used interchangeably and without distinction, the terms 'wanton conduct' and 'wanton negligence.' Other courts have done the same. Though a matter of semantics, we believe a confusion has arisen because of such usage, and desire to resolve it. Accordingly, we repudiate the use of the term 'wanton negligence.' We consider the following language of Justice Traynor in Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465, 468, 469, most helpful:

'Negligence is an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm. Rest. Torts, secs. 282, 283, 284; Prosser, Torts, sec. 30, et seq. A negligent person has no desire to cause the harm that results from his carelessness. Rest. Torts, sec. 282(c). And he must be...