Styris v. Folk

Decision Date06 March 1944
Docket Number3393.
Citation146 P.2d 782,62 Nev. 208
PartiesSTYRIS v. FOLK.
CourtNevada Supreme Court

Appeal from District Court, Second Judicial District, Washoe County Wm. McKnight, Judge.

Action by Otis B. Folk against Eli Styris for personal injuries sustained by plaintiff when struck by an automobile driven by defendant. From a judgment for plaintiff on a jury's verdict and an order denying defendant's motion for a new trial, defendant appeals.


See also, 139 P.2d 614.

Morley Griswold and George L. Vargas, both of Reno for appellant.

Lloyd V. Smith, of Reno, for respondent.

DUCKER Justice.

Respondent, plaintiff in the court below, recovered damages in this action for personal injuries sustained by him when struck by an automobile driven by appellant. The trial court entered final judgment on the verdict and denied appellant's motion for a new trial.

The accident happened on Granite Street in the City of Reno, between its intersection with West Liberty Street on the north, and California Avenue, a block beyond on the south. At the time of the accident respondent and a man named Campbell had left the sidewalk on the east side of Granite Street near the middle of the block, and were crossing the street. When they reached a point about ten feet from the west curb of Granite Street respondent was struck on the left leg by the right end of the bumper of the automobile, and thrown back towards the middle of the street.

When the accident happened there was a city ordinance of the City of Reno in force and effect which prohibited pedestrians from crossing streets at any point other than at regular street or alley crossings at intersections. This ordinance also provided that every person driving an automobile upon any of the streets shall drive the same in a careful manner and with due regard to the safety and convenience of pedestrians, and not so driving shall be deemed guilty of reckless driving. By the provisions of the ordinance the place where the accident happened was within a zone in the city where driving an automobile at a rate of speed greater than twenty-five miles per hour was prohibited, and the sounding of a horn on the automobile was required as a warning of danger.

It is contended by appellant that by violation of this ordinance respondent was guilty of contributory negligence, which negligence continuing actively up to the moment of the impact, became, as a matter of law or in fact, the proximate cause of the accident.

The trial court concluded that the doctrine of last clear chance was involved, and instructed the jury accordingly. The instructions given on this phase of the case are as follows:

"There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the Doctrine of Last Clear Chance. It is permissible to use the doctrine only after we first find, and you may not use it unless and until you first shall have found, that in the events leading up to the accident in question, both the Plaintiff and Defendant were negligent.
The Doctrine of Last Clear Chance may be invoked if, and only if, you find from the evidence that these six facts existed:
First: That Plaintiff, by his own negligence, got himself into a position of danger.
Second: That thereupon, either it was physically impossible for him through the exercise of ordinary care to escape from the danger, or he was totally unaware of impending danger in his position.
Third: That the Defendant saw, or by the exercise of ordinary care could have seen, Plaintiff in his position of danger.
Fourth: That it appeared to the Defendant, or would have appeared to him in the exercise of ordinary care, that Plaintiff either was unaware of the danger impending in the situation or was unable to escape therefrom through the exercise of ordinary care.
Fifth: That if Defendant saw Plaintiff, or could have seen Plaintiff by the exercise of ordinary care, that he had or would have had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.
Sixth: That the Defendant did not use ordinary care to avoid the accident, but by negligent conduct proximately caused the accident.
If all the conditions just mentioned are found by you to have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions the law holds the Defendant liable for any injury suffered by the Plaintiff and proximately resulting from the accident, despite the negligence of the Plaintiff.
14. In considering the Doctrine of Last Clear Chance, you should keep in mind that it was not intended, and should not be permitted, to violate the basic principle that liability must be founded on both negligence and proximate cause; also that it may not be permitted to set aside the law of contributory negligence.
A person might negligently get himself into a dangerous position, and while that fact might be an element in a chain or setting of circumstances from which injury thereafter comes, yet it might not be a proximate cause of that injury, because some other efficient agent might intervene to proximately produce the accident. On the other hand, such a person's negligence, or its results, might continue in unbroken effectiveness to the point of producing or aiding to produce the injury. The Doctrine of Last Clear Chance rests on this distinction, and its prime value is to aid us in detecting which of the two conditions existed.
Thus the Doctrine is invoked to defeat the defense of contributory negligence only in a case when, after Plaintiff's negligence has put him into a position of danger, its work as an efficient agent of causation ceases, and it does not play a part in proximately causing the accident. When, on the other hand, a person's negligence not only places him in a position of danger, but thereafter it or its effect continues, and as a proximately causing factor, brings about, or helps to bring about, the accident, then the law of contributory negligence applies, and such person may not recover."

Appellant's counsel did not object to these instructions, nor except to the ruling of the court in giving them. He has not assigned the ruling of the court as error. He contends, however, that the doctrine of last clear chance is not applicable in any case unless the defendant had actual knowledge of the injured person's perilous predicament in time, by the exercise of ordinary care, to avert the accident; and that in the case here there is no evidence tending to show such actual knowledge on the part of appellant, but that the evidence is to the contrary. We do not agree with this view. It is established by the weight of well considered authority that actual knowledge in a given case is unnecessary to bring this doctrine into operation. It is enough if the defendant, by the exercise of ordinary care, would have discovered the imminent peril of another in time to avert the accident. Failing in this duty, he is liable under the doctrine. Deiss v. Southern Pacific Co. et al., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332; Yellow Cab Corporation v. Henderson, 178 Va. 207, 16 S.E.2d 389; Ramsey v. Sharpley, 294 Ky. 286, 171 S.W.2d 427; Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P.2d 449, 92 A.L.R. 1; Bogan v. Carolina Cent. R. Co., 129 N.C. 154, 39 S.E. 808, 55 L.R.A. 418; W. B. Bassett Co. v. Wood, 146 Va. 654, 132 S.E. 700; Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259; 45 C.J. 991, note 17.

As was said in Deiss v. Southern Pac. Co., supra [56 Nev. 151, 47 P.2d 931]: "This *** is *** the better rule." Indeed the so-called humanitarian doctrine would lose much of its efficacy if a party could escape the consequences of his negligence simply by not seeing where he was going, particularly with a dangerous instrumentality.

Appellant has made an effort to construe the latter case into line with his contention that actual knowledge of the imminent danger of another in a helpless situation, is necessary to bring the doctrine of last clear chance into play. The effort has not been crowned with success. The court said in that case: "We are fully aware of the numerous decisions of courts of high standing supporting the rule that actual perception by a defendant of plaintiff's peril is necessary to bring a case within the humanitarian doctrine. This court, however, is clearly satisfied that the better rule makes actual perception unnecessary, and that if the defendant 'would have discovered plaintiff's situation and thus had reason to realize the plaintiff's helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise', (Restatement of the Law, Torts, vol. 2. § 479), the case comes within the aforesaid doctrine."

There is no confusion of thought needing construction in that language. We here confirm it. Moreover, it was the law of this state before the decision in Deiss v. Southern Pac. Co. See Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65.

Appellant assigns as error the refusal of the court to give the following instruction: "The plaintiff has not proved facts sufficient to justify you to give a judgment for any moneys against the defendant, and your judgment must be for defendant."

The instruction was refused by the court on the ground that it was clearly against the evidence.

Appellant contends that the refusal of this instruction was reversible error because respondent's negligence was established as the proximate cause of the accident as a matter of law. This tenders the question whether under the facts the court was warranted in submitting the case to the jury by the instructions based on the...

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  • Ackerman v. James
    • United States
    • Iowa Supreme Court
    • September 19, 1972
    ...Company, 137 Mont. 154, 157, 351 P.2d 212, 214; Malcom v. Dox, 169 Neb. 539, 541--543, 100 N.W.2d 538, 541--542; Styris v. Folk, 62 Nev. 209, 216, 146 P.2d 782, 786; Couture v. Lewis, 105 N.H. 224, 226, 196 A.2d 60, 63; Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845; Niday v. Tomasini, 240 Or......
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    ...of whether the negligence arose by violation of statute or by ordinary negligence. Styris v. Folk, 62 Nev. 208, 209, 139 P.2d 614, 146 P.2d 782. 'Negligence per se and proximate cause are two separate and distinct issues. While one is presumed as a matter of law, the other must, nevertheles......
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