Sierra Pac. Power Co. v. Anderson

• Decision Date: 17 February 1961
• Docket Number: No. 4298,4298
• Citation: 77 Nev. 68,358 P.2d 892
• Parties: SIERRA PACIFIC POWER COMPANY, a Maine corporation, and Frank Tracy, Appellants, v. Andrew V. ANDERSON, Respondent.
• Court: Nevada Supreme Court

Page 892

358 P.2d 892

77 Nev. 68

SIERRA PACIFIC POWER COMPANY, a Maine corporation, and Frank Tracy, Appellants, v. Andrew V. ANDERSON, Respondent.

No. 4298.

Supreme Court of Nevada.

Feb. 17, 1961.

Woodburn, Forman, Wedge, Blakey & Thompson, Reno, for appellants.

Nada Novakovich, Reno, for respondent.

JON R. COLLINS, District Judge.

This is an appeal from the order of the trial court denying a new trial, and from a judgment of the trial court based upon the verdict of a jury in favor of respondent and against appellants for the sum of $36,000. The jury awarded damages as follows:

(a) for bodily impairment $ 1,000.00

(b) for loss of earning power to date and to be incurred in the future 15,000.00

(c) for pain and suffering from accident to date of verdict 4,136.65

(d) for pain and suffering to be incurred in the future 15,000.00

(e) medical expense paid by the Nevada Industrial Commission 863.35

Total: $36,000.00.

At the trial appellants admitted negligence but contended, as a matter of law, that Anderson had assumed the risk of the condition which caused his injuries. The trial court ruled that such issue was for the jury and permitted that issue and the question of damages to be passed upon by the jury.

Appellants assign as error the following points:

1. That assumption of risk by respondent was established as a matter of law.

2. That it was improper to allow respondent to testify he didn't know there was going to be an explosion.

3. Permitting the jury to award respondent damages for loss of future earnings.

4. Permitting the jury to award respondent damages for future pain and suffering.

5. That the verdict was excessive.

The circumstances out of which this appeal arose were the explosion and fire at North Sierra Street in Reno, Nevada, on February 5, 1957. Respondent at that time was a captain of the Reno Fire Department and was assigned by his superior to investigate the smell of gas at North Sierra Street. He arrived there at approximately 12:54 P.M. There was no explosion or fire in progress at the time. He went from building to building in the area, investigating the odor of gas, warning occupants and customers, called the central fire station to report his findings and, about ten minutes later, was on the west curb of the street when the first and second of two explosions occurred. As a result, respondent Anderson suffered the injuries hereinafter discussed. The explosion and resulting fire were of great magnitude, destroying substantial parts of two city blocks in downtown Reno and killing and injuring several persons. The evidence adduced at the trial indicated that Anderson's injuries consisted of a laceration of the cheek and chin; puncture wounds and laceration of the left leg; puncture wounds and lacerations of the right wrist severing the extensor tendons aggravation of a previously factured spine; nervous tension and feeling of remorse and guilt resulting from circumstances surrounding the explosion. He was confined to the hospital for three weeks, after which he returned to his employment with the fire department at his regular monthly salary of $505. He was involuntarily retired late in 1958 when he was 42 years of age and had risen to rank of captain. He was granted disability retirement of $197.42 per month. His retirement was brought about by his physical and mental inability to perform his duties. Respondent, after the accident, enrolled in school, completed his high school course and then entered the University of Nevada.

The principal ground of error urged by appellants is that respondent should be held to have assumed the risk as a matter of law. Assumption of risk, as a defense, "is founded on the theory of consent, with two main requirements: (1) voluntary exposure to danger, and (2) actual knowledge of the risk assumed.' A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.' Papagni v. Purdue, 1958, 74 Nev. 32, 35, 321 P.2d 252, 253. Appellants argue that Anderson voluntarily exposed himself to a risk that was or should have been known to him by reason of his training and experience as a fireman, and because of his employment by the municipality of Reno. They urge that a fireman, by the very nature of his contract of employment and the duties arising therefrom, voluntarily assumes all risks incident thereto and cite Clark v. Boston & Maine Railroad, 78 N.H. 428, 101 A. 795, L.R.A.1918A, 518; Suttie v. Sun Oil Co., 15 Pa. Dist. & Co. R. 3.

A fireman solely by reason of his employment, does not assume all risks arising therefrom. He is held to assume only those risks which reasonably flow from his hazardous occupation. He does not assume unknown, extraordinary risks not contemplated and expected to be incidental to his work. Smith v. Twin State Gas & Electric Co., 83 N.H. 439, 144 A. 57, 783, 61 A.L.R. 1015. The evidence shows that when Anderson arrived at the scene to investigate the presence of gas, there was no fire or explosion in progress. It is not reasonable to expect Anderson to know that several city blocks would suddenly blow up; that many persons would be killed and injured; that vast property damage would be inflicted. Yet to assume the risk as a matter of law, Anderson must have known all this, appreciated the magnitude of the danger to himself, and would have withdrawn from the area, if appellants' theory is to be adopted. A clear distinction should be made between the doctrine of contributory negligence which operates as a defense when a party knows or by the exercise of ordinary care should have known a particular fact or circumstance, and assumption of risk, which operates only when the party actually knows the full scope and magnitude of the danger and thereafter voluntarily exposes himself to it. The fact that Anderson recognized the possibility of an explosion recognized was quite different from knowledge on his part that an explosion would occur. Papagni v. Purdue, supra; Smith v. Twin State Gas & Electric Co., supra; Fuchs v. Mapes, 74 Nev. 366, 332 P.2d 1002. The trial court was therefore correct in refusing to hold that Anderson assumed the risk as a matter of law.

The next point of error urged by appellants was permitting Anderson to testify he didn't know there would be an explosion. Appellants suggest this testimony was to an ultimate fact and therefore invaded the province of the jury, citing Mikulich v. Carner, 69 Nev. 50, 240 P.2d 873, 38 A.L.R.2d 1; and Konig v. Nev.-Cal.-Oregon Railway, 36 Nev. 181, 135 P. 141. Respondent contends it was a statement on the condition of his mind and admissible along with other evidence for the jury's consideration.

As stated above, an essential element of assumption of risk is actual knowledge by the party of the danger assumed. Knowledge or lack of it on the part of the person against whom the defense is raised is a factual matter for the jury to pass upon. A person is entitled to tell the condition of his own mind on this subject and it then becomes a matter of what credibility or weight the jury will attach to it. Anderson certainly could have been cross-examined thoroughly on this point in light of his training and experience,...