Walker v. Burkham

• Citation: 222 P.2d 205,67 Nev. 541
• Decision Date: 21 August 1950
• Docket Number: No. 3525,3525
• Parties: WALKER et al. v. BURKHAM.
• Court: Supreme Court of Nevada

Page 205

222 P.2d 205

67 Nev. 541

WALKER et al. v. BURKHAM.

No. 3525.

Supreme Court of Nevada.

Aug. 21, 1950.

Royal A. Stewart, of Reno, for appellant.

Kearney & Adams, of Reno, for respondent.

HORSEY, Chief Justice.

On the 1st day of August, 1947, counsel for the plaintiff, in the action in the court below, filed and served plaintiff's notice of appeal to this court from the judgment rendered and entered on the certain verdict on the 3rd day of February, 1947, in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, in favor of the defendant and against the plaintiff; and, also, that the plaintiff has appealed from the order denying plaintiff's motion for a new trial, made and entered in the minutes of said district court on the 31st day of July, 1947.

In appellant's 'Statement of Facts' in appellant's opening brief, under the caption 'The Plaintiff', appellant's counsel has, in narrative form, detailed quite fully a summary of the testimony, and, in connection therewith, has referred to numerous places in the transcript of the testimony, in support of such summary (see page 1, line 18 to and including page 3, line 1, of appellant's opening brief).

Under the caption 'The Defendant', such summary by counsel for appellant is on page 3, line 3, to and including page 4, line 3.

Such summary of the testimony of the plaintiff and of the defendant is as follows:

'The Plaintiff

'On September 15, 1943, the plaintiff, David C. Walker, was slightly over fourteen years of age, having been born on August 17, 1929, and he was at that time living with his mother and brothers at 229 Winter Street in Reno, Nevada. (Trans. p. 191). As indicated by the diagram, (Exhibit B), the street runs North and South and the plaintiff's residence was on the West side of the street. Immediately North of the residence, was a vacant lot where the plaintiff had been accustomed to playing, and North of that was a warehouse building belonging to the Consolidated Warehouse Company. There were also warehouse buildings across the street.

'The plaintiff had returned from school about 4:00 o'clock in the afternoon of September 15, 1943, and had brought a friend with him. (Trans. p. 194). The boys had erected a small tent on the lot adjoining their residence where they habitually played, and at the time in question, other bosy were playing ball in the street in front of the residence, vacant lot and warehouse buildings. (Trans. p. 196). The plaintiff had tossed a small radio tube thoughtlessly into the street and immediately afterwards, the defendant had appeared around a coner of the warehouse building at the point marked 'C' on the diagram. The defendant walked toward and past the plaintiff, telling him to pick up the parts of the tube in the street, which he did. (Trans. p. 197.) The defendant appeared to the plaintiff to be very angry and walked within ten or fifteen feet of him and on over to the plaintiff's house. (Trans. p. 197.) The plaintiff then went over and picked up the portions of the radio tube from the street and was standing in the street at the point marked 'D' on the diagram, when the defendant, returning from the house angrily started toward the plaintiff saying that he wanted to talk to him. The plaintiff became frightened and started to run in a Northerly direction on Winter Street. (Trans. p. 198.) The defendant pursued the plaintiff and caught up with him and grabbed him by the back of his shirt swinging him around at a point in the street opposite the warehouse building located on the West side of the street. This scuffle resulted in the breaking of plaintiff's glasses. The plaintiff finally broke away and ran back towards his own house. (Trans. p. 198.) As he ran down the sidewalk in a southerly direction onto his own property, the defendant still pursuing him, tripped him causing him to fall on his left arm. (Trans. pp. 199-200.) The police were subsequently summoned and he was taken to a hospital where his arm was set several times and where he remained for a total of forty-two days. (Trans. pp. 301, 202.) The defendant had not attempted to help him or do anything further but that (he) had merely walked away after he was injured. (Trans. p. 202.)

'The Defendant

'The defendant's testimony was to the effect that he had looked to see who had thrown the glass and that the only thing he could see was the plaintiff. That he asked the plaintiff if he had thrown the glass to which the plaintiff had answered 'Yes'. (Trans. pp. 259, 260.) That he was going over to see the mother of the plaintiff and that the plaintiff proceeded to clean the glass up. (Trans. pp. 260, 261.) That failing to find the mother of the plaintiff at home, he had retraced his steps and called to the plaintiff that he, the defendant, wanted to talk to him. That plaintiff had stopped and he had walked up to him, standing face to face and told him that these damaging actiosn in breaking glass in the street would have to stop. (Trans. p. 262.) The plaintiff just stood there backing away just a step or two and that when he, the defendant, mentioned to the plaintiff that he would have to talk to his mother regarding his behavior again, the plaintiff wheeled and started to run. (Trans. p. 262.) That the defendant ran after the plaintiff and caught up with him grabbing him by the back of the shirt in the door of the warehouse. (Trans. p. 262.) That he immediately released the plaintiff and after talking to him a while again, the plaintiff turned and ran again, this time in the general direction of his, the plaintiff's house. (Trans. pp. 263-265.) The defendant again pursued the plaintiff and was about six feet behind him when the plaintiff tripped and fell and that the defendant's momentum carried him over the plaintiff. (Trans. p. 287.) On cross-examination, the defendant refused to deny that he had previously testified 'that when the plaintiff got to the front of the building, and found he was not going to get in, he stopped and humped up so I would go by him and he would double back.' (Trans. pp. 281, 282.) (Thus negativing the idea that the plaintiff was on the Consolidated Warehouse property at all during the entire episode).'

Likewise, it appears only fair to present herein respondent's statement of facts in respondent's answering brief, page 1, line 10, to and including page 5, line 1:

'For the purpose of clarity, we find it necessary to make certain corrections and additions to the appellant's summaries of the testimony of the plaintiff and the defendant. Unless otherwise specified in this brief, where we refer to the appellant we mean the boy, David Walker.

'The statement by appellant as to respondent's testimony avoids any statement as to the surrounding circumstances and the background of the incident. Since the appeal is based primarily on the admissibility of evidence concerning these matters, we respectfully submit they should be referred to in the statement of facts.

'The evidence shows that for some time prior and continuing to the time of the incident, complained of, appellant and other boys had engaged in destructive mischief on the premises of the Consolidated Warehouse Company and had constantly trespassed thereon. (Trans. 244, Folio 730; Trans. 245, Folio 733-734-735; Trans. 258, Folio 773; Trans. 273, Folio 818; Trans. 278, Folio 833-834; Trans. 289, Folio 865; Trans. 294, Folio 880-881; Trans. 299, Folio 895, 896; Trans. 301, Folio 903; Trans. 304, Folio 911; Trans. 305, Folio 915; Trans. 309, Folio 926, 927.)

'On the day in question, in order to avoid talking with the respondent, appellant was trying to run into the same warehouse into which he had gone several times before. On several previous occasions, he had refused to leave, although requested to do so by the respondent and other employees. (Trans. 244, Folio 730; Trans. 250, Folio 748, 749; Trans. 254, Folio 760; Trans. 298, Folio 893; Trans. 299, Folio 896, 897; Trans. 301, Folio 902.)

'Appellant had on previous occasions gone across the street and south-east from that warehouse and climbed up on other warehouse buildings of the company by means of the wall adjoining the Devincenzi property. (Trans. 254, Folio 760; Trans. 289, Folio 867.)

'The respondent had talked to the appellant on various occasions in a friendly manner, offering no violence for the continued trespasses, but, although requested not to, the appellant persisted in his trespasses. (Trans. 250, Folio 748, 749; Trans. 253, Folio 757-9; Trans. 254, Folio 761; Trans. 255, Folio 765; Trans. 256, Folio 766-7; Trans. 289, Folio 867; Trans. 293, Folio 879; Trans. 294, Folio 880, 881; Trans. 298, Folio 894; Trans. 299, Folio 895, 896; Trans. 300, Folio 898; Trans. 305, Folio 915; Trans. 306, Folio 918; Trans. 307, Folio 920.)

'The police had been called on several occasions without any improvement in appellant's conduct. (Trans. 257, Folio 768, 769; Trans. 258, Folio 772.)

'The respondent was an employee of the Consolidated Warehouse Company and responsible for the buildings and their contents. (Trans. 251, Folio 721; Trans. 302, Folio 906.) Respondent testified that at the time of the incident in question, he intended to talk further with the appellant (Trans. 262, Folio 785; and see appellant's testimony, Trans. 198, Folio 592) and if the appellant would not 'listen to reason' the respondent, who was then a deputy sheriff, was going to take him to the police station. (Trans. 263, Folio 785; Trans. 268, Folio 803.)

'On the day in question, appellant, who was on a vacant lot belonging to respondent's employer, threw glass into the street, the glass landing at respondent's feet. The respondent directed appellant to pick up the glass, which he did. (Trans. 156-7, Folio 780-781.) Respondent then walked near to, and past appellant to see if the latter's mother was at home. She was not, so respondent walked over to appellant and said he wanted to talk to him....