Schopper v. Kelley

• Decision Date: 11 December 1959
• Docket Number: No. 4203,4203
• Citation: Schopper v. Kelley, 347 P.2d 279, 75 Nev. 520 (Nev. 1959)
• Parties: Fred W. SCHOPPER, Lenora A. Schopper, and Roberta J. Schopper, dba Schopper's Nursery Company, and Charles Cunningham, Appellants, v. Edward KELLEY, Respondent.
• Court: Nevada Supreme Court

Page 279

347 P.2d 279

75 Nev. 520

Fred W. SCHOPPER, Lenora A. Schopper, and Roberta J Schopper, dba Schopper's Nursery Company, and Charles Cunningham, Appellants, v. Edward KELLEY, Respondent.

No. 4203.

Supreme Court of Nevada.

Dec. 11, 1959.

Vargas, Dillon & Bartlett and Alex A. Garroway, Reno, for appellant.

Jack Streeter, Reno, for respondent.

PIKE, Justice.

Appeal from an order granting a motion for new trial.

Appellants Schopper and Cunningham were defendants in an action brought by respondent Kelley to recover damages for personal injuries sustained by Kelley and for damage to Kelley's car. The jury returned a verdict in favor of appellants, and the trial court granted respondent's motion for a new trial, from which order this appeal is taken.

At about noon on June 5, 1957 respondent Kelley drove his car in an easterly direction on Kietzke Lane, a four-lane paved highway, near the point of its intersection with Coney Island Drive, a two-land paved highway. Such intersection is situated near the easterly city limits of Reno, Nevada, and the two highways there intersect at approximately right angles. Kelley, driving his 1940 Chevrolet sedan, entered the intersection, making a lefthand turn so as to proceed in a northerly direction on Coney Island Drive. After completing the turn and while proceeding across the northerly or outside lane for westbound traffic on Kietzke Lane he was struck by a 1954 Ford pickup truck driven by appellant Cunningham, an employee of appellants Schopper.

The portion of Kietzke Lane which included the intersection was designated as a 45-mile per hour zone by appropriate official highway signs. Stop signs were in place requiring vehicular traffic along Coney Island Drive to stop before entering the intersection from either the north or south. There is evidence that Kelley stopped before entering the intersection and also that he signaled his intention to make a left turn. He testified that he saw the westbound pickup truck after he had started into the intersection and when the truck was about 300 feet away.

Cunningham, driver of the pickup, testified that he was driving west in the northerly or outside lane when he saw the Kelley car in the intersection, some 200 feet distant. He estimated the speed of the pickup at 38 miles per hour, and testified that although he applied his brakes he was unable to avoid striking the Kelley car as it was crossing the lane that he was in. The testimony of the persons present when the accident occurred, other than the pickup driver, indicates that their estimate of the pickup's speed was about 45 miles per hour. Marks on the pavement made by the pickup's tires after its brakes were applied extended eastward 132 feet from the point of collision. The impact of the pickup skidded the Kelley car sideways for some six feet into a southbound car on Coney Island Drive which had stopped at the stop sign before crossing the intersection. The impact of the Kelley car as it was forced into this third car, driven by one Kramer, caused the third car to be forced backwards into a fourth car, driven by a Mrs. Boynton, which had stopped immediately behind the third car on Coney Island Drive. A university faculty member in the field of physics, Dr. George Barnes, testified as an expert and, in response to hypothetical questions, stated that his computations showed the pickup to be traveling some 54 miles per hour at the time of collision.

As indicative of the volume of traffic on Kietzke Lane, Kramer, the driver of the car which was struck by the skidding Kelley car, estimated that 35 or 40 vehicles traveling at various speeds, had passed while he was waiting for an opportunity to cross Kietzke Lane. Respondent Kelley testified that at least six or eight cars had passed on Kietzke Lane at speeds of about 35 miles an hour as he waited at the intersection before entering it and making his lefthand turn.

In returning its verdict in favor of appellants the jury indicated that it had based such verdict upon the court's instruction relating to contributory negligence. Although respondent's motion for new trial stated that it was made upon the several statutory grounds enumerated therein and the order granting respondent a new trial stated the same grounds, a review of the entire record indicates that the only ground requiring our consideration is that of the asserted abuse of discretion of the trial judge in granting a new trial because of insufficiency of the evidence to justify the verdict. This court has held that if a motion for a new trial was properly granted on this ground it is immaterial whether the trial court was in error in granting the new trial on other grounds. Nevada Rock & Sand Co., Inc. v. Grich, 59 Nev. 345, 93 P.2d 513.

Appellants recognize that a trial judge has discretion to grant or refuse a new trial, but assert that, in the instant case, there was an abuse of discretion by the trial judge in granting the motion for new trial.

Appellants and respondent refer to the decision of this court in Nevada Rock & Sand Co., Inc. v. Grich, supra, and respondent also places reliance upon the later decisions of this court: Arrowhead Freight Lines, Ltd. v. White, 71 Nev. 257, 287 P.2d 718; Aeroville Corp. v. Lincoln County Power Dist. No. 1, 71 Nev. 320, 290 P.2d 970; ...