Weck v. Reno Traction Co.

Decision Date29 May 1915
Docket Number2125.
Citation149 P. 65,38 Nev. 285
CourtNevada Supreme Court

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by Charles E. Weck against the Reno Traction Company. From a judgment for plaintiff and denial of its motion for new trial, defendant appeals. Affirmed.

Huskey & Springer, of Reno, for appellant.

Harwood & Springmeyer, of Reno, for respondent.


Respondent who was plaintiff in the lower court, on December 17, 1913 while out in his automobile in the city of Reno, drove along the east side of Elm street, and upon reaching Sierra street turned in a southerly direction; and there being a wagon backed up against the sidewalk, with a horse hitched to it whose head came within three feet of the track of appellant, an auto-truck standing just beyond the horse and wagon, and another horse and wagon standing in a similar position to the one first mentioned and a short distance beyond the auto-truck, it was necessary for respondent either to go along the street car track until getting past the last horse and wagon mentioned, or go on the opposite (left-hand) side of the said track. Just as respondent turned in front of the first horse and wagon, he saw a car of appellant about 225 feet away, approaching at a speed approximated at from about 25 to 30 miles an hour. There was also an automobile on the left-hand side of the track, traveling in a northerly direction.

Respondent testified:

"Well, I was turning around, had to go around the horse, and it put me on the track; I could not do anything else. If I had pulled across the street, it would have been against the law; I would have run into an automobile, besides."

Respondent speeded up his automobile and tried to get past the second horse and wagon and turn off of the track to the right, and just as he was leaving the track the rear end of the automobile was struck by the street car (which weighed about 18 tons), and carried a distance of about 25 feet back upon Elm street, badly damaging the automobile.

Respondent brought suit to recover damages, and upon the trial, plaintiff having rested his case, a motion for nonsuit was interposed, which being denied, the case was submitted on plaintiff's evidence. The jury brought in a verdict for the plaintiff. From a denial of a motion for a new trial and the judgment in favor of respondent, appellant brought the case to this court.

It is contended that the court erred in denying appellant's motion for a nonsuit. It is urged that, as witnesses Weck and James were going in the direction of the approaching street car, it was impossible for them to estimate the speed of the street car. The case of Chicago Gen. R. Co. v. Novaeck, 94 Ill.App. 178, cited in support of the contention, is not in point. That is a case where the court said, "his (plaintiff's) evidence shows that his attention and efforts were directed to urging his team so as to get off the track," and consequently he could not estimate the speed of the train. But an entirely different theory is urged here. We cannot say that the evidence as to the speed of the street car was not substantially correct. Nor is the fact that the witnesses did not undertake to fix the speed of an automobile which was going along the left-hand side of the street car track any reason to assume that they could not form a fairly accurate estimate of the speed of the street car. Their attention was centered upon the street car, while they ignored the automobile, so far as estimating its speed.

The point most seriously urged under this assignment is the contention that the physical facts flatly contradict the testimony of the witnesses, and consequently the jury should not have been permitted to consider the case. In the case of Mandel v. Washington Water Power Co., 144 P. 921, the Supreme Court of Washington uses this language:

"Physical facts which are undisputed and speak the truth with unerring certainty must control."

This court, in the case of Knock v. Tonopah & G. R. Co., 145 Pac. on page 940, says:

"It is urged that the case should be reversed because the plaintiff's testimony is contradicted by physical facts. If any physical fact made it impossible for the engineer to back up without signal and crush the respondent's arm, such fact would control, and the testimony in case of respondent would fall. If his testimony regarding any matter essential to his recovery were contradicted by any physical fact, the case would have to be remanded. Testimony contrary to a physical fact regarding a matter which is not controlling may weaken the credibility of the witness, but is not ground for reversal."

With the general rule that undisputed physical facts which speak the truth unerringly cannot be overcome by oral testimony we most heartily agree, but the testimony in this case does not bring it within the rule. If two engines had approached each other along a railway track at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly how long it would have taken them to meet. In this supposed case we have two fixed, positive facts to figure on, namely, the distance the engines are apart and the exact speed at which they are traveling. If a witness were to testify that it took two minutes for the two engines to collide, we could ascertain the correctness of his testimony by invoking the science of mathematics. Such is not the situation in the case before us. Everything was approximated. The distance between the automobile and the street car was fixed by the testimony at "about" 200 or 225 feet, the speed of the automobile at "about" 4 to 7 miles an hour, and of the street car at "about" 25 to 30 miles an hour. So there are three elements approximated--the distance between the street car and the automobile, the speed of the automobile, and the speed of the street car.

In view of the well-established rule that a case should not be taken from a jury on a motion for nonsuit where reasonable men might fairly differ on the questions of fact, and that the court must construe the evidence most favorably to the plaintiff when such a motion is under consideration ( McCafferty v. Flinn, 32 Nev. 273, 107 P. 225), we cannot say that the court erred in denying the motion.

It is urged that the evidence shows such contributory negligence on the part of the plaintiff as to preclude his recovery, in that he should have looked and listened before turning onto the street car track at Sierra street. Such is the well-known rule applicable to steam railroads, but we think the better rule and the weight of authority are to the contrary so far as street car lines are concerned. The Supreme Court of Colorado, in Philbin v. Denver City Tramway Co., 36 Colo. 331, 85 P. 631, lays down the following rule:

"The duty imposed upon persons crossing steam railway tracks to stop, look, and listen, is not rigidly applied to persons traveling a street used by a street railway."

The Supreme Court of Utah, in Spiking v. Con. Ry. & P. Co., 33 Utah, 323, 93 Pac. on page 841, uses the following language:

"It would seem to require but slight reflection to realize that, in the nature of things, there must be considerable difference between an attempt to cross a street railway and a steam railway, or in passing along the tracks of the one or the other. Without stopping to point out all the differences, we may be permitted to call attention to one of the fundamental differences between street and steam railways. The part of the street on which a street railway track is laid, and over which cars are operated, is not withdrawn from public use and travel. The rights and duties of the public and the street car operatives are mutual and reciprocal. The only right that the operators of a street railway possess over the public generally is a preferential right of passage over the tracks with the cars, and that between public crossings it is always the duty of the pedestrian or the person driving a vehicle to see to it that he does not impede the street car. But the street car company, in operating its cars, must likewise at all times and places exercise ordinary care so as not to injure any one who may be on or near the track, and at public crossings must have its cars under the control of the operator, and must exercise reasonable care to have them so in approaching the crossings; the degree of care to be exercised always depending upon the prevailing circumstances and conditions. As a general rule, therefore, where a collision occurs between a person lawfully using the street and a street car, the question as to whether the operator or such person, or both, were exercising the degree of care that the law imposes, is a question of fact depending upon all the surrounding circumstances and conditions."

In Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3, 35 N.E. 95, 39 Am. St. Rep. 446, the court says:

"The next particular assigned is that she failed to look to see if a car was coming; and a special instruction was asked, based on the assumption that she failed to look. This, also, was for the jury. The accident did not occur from a collision at the street crossing. The plaintiff had passed that point, and was proceeding on Appleton street. The court rightly refused to instruct the jury that a mere failure to look would prevent her from recovering. This has been so held even in cases of collision. Shapleigh v. Wyman, 134 Mass. 118; French v. Railroad Co., 116 Mass. 537. The question was left to the jury with proper instructions."

In Swain v. Fourteenth St. R. Co., 93 Cal. on page 184, 28 Pac. on page 830, the Supreme Court of California uses the following language:

"And it was clearly a question for the jury whether the

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