Austin v. Dilday , 55 Nev. 357 ( 1934 )

It is the claim of appellant that there is no evidence upon which to sustain a verdict for plaintiff in this case. We contend that there is no evidence whatsoever produced which shows that the speed of defendant's car was excessive or was in excess of the speed at which an ordinary person would travel upon that particular highway. We maintain that under the surrounding conditions, excessive speed was shown.

Witness Robbins' testimony that the steering arm of the car, after the accident, was in such shape that you could turn it to the right but could not turn it to the left, is not denied. If it were in that condition before the accident, the appellant was guilty of negligence in driving such a car. And if it were not in that condition, how did it get that way? Robbins says it could have been bent by great pressure on the steering wheel. Appellant was driving the car, and if he exerted such pressure on the wheel, we submit that was not careful driving.

OPINION This action was commenced by Mary Hortense Proctor to recover damages alleged to have been sustained by reason of defendant's negligence while riding in an automobile with her.

After the trial of the case but before judgment was rendered, Mrs. Proctor died, and the action was revived in the name of her administrator. The defendant has appealed from the judgment and from the order denying a new trial.

We will first consider the contention that the evidence does not justify the judgment and the findings.

The court found that while the deceased was riding with the defendant as his guest, the car in which they were riding, as a result of the negligence of defendant in operating the car at an excessive speed, overturned; that the road over which the defendant was driving, at the time of the accident, "was rough, choppy and full of small potholes, some of which was partly filled with loose dirt, dust and desert sand, and that there was a slight depression on both sides of the improved portion of said roadway, immediately adjoining and parallel to the same, for some considerable distance, both ways from and at the place of said accident, and that all of the foregoing facts were well known to this defendant prior to and at the time of said accident."

The court also found that for several months prior to and at the time of the accident, the steering gear on defendant's automobile was defective, in that the control, movement, direction, and guidance of the front wheels of the same did not at all times quickly, readily, and truly respond to the movement of the steering wheel of said car, thereby rendering it impossible for the driver of said car to at all times direct its course, and that during all of such time said defective condition of said steering gear was well known to the defendant, but not known to the deceased.

The court further found: "That if said automobile had been in proper condition and properly propelled and controlled by this defendant, at the time of said accident, in the usual and ordinary manner, and driven over said road at a reasonable rate of speed, said accident would not have occurred and no injury would have resulted to plaintiff's testatrix, Mary Hortense Proctor."

Does the evidence support the findings and judgment? We think it is clear that it does not, and, it so appearing, the judgment must be reversed. Valverde v. Valverde, 55 Nev. 82,26 P.2d 233.

To demonstrate this conclusion does not, in our opinion, necessitate a very extensive review of the evidence.

The trial court found as a fact that the defendant at the time of the accident was driving at the rate of at least thirty-five miles an hour. This finding is supported by the evidence. The plaintiff called one witness who testified that it was not dangerous to travel over the road in question at the rate of thirty-five miles an hour. This witness was James H. Down. His testimony stands unquestioned and uncontradicted, and, coming from the mouth of a witness produced by the plaintiff, it would seem to be conclusive to show that the defendant was not guilty of negligence in the manner of driving, which is the sole basis of negligence asserted by the plaintiff in the complaint.

The defendant produced James Foxley, a witness of wide experience with automobiles, and traffic officer at the time of the accident, who corroborated plaintiff's witness on this point. These were the only witnesses who testified as to this question, both of whom inspected the road soon after the accident.

But the court also found that at the time of the accident, and for some time prior thereto, the steering gear of the car in question was so defective as at times to prevent its readily responding to the efforts of the driver thereof, and it appears that the court was influenced in reaching its judgment because of this finding, coupled with the other finding mentioned as to negligence. We do not find a scintilla of testimony to support this finding. The only witness who testified as to the condition of the steering wheel prior to the accident was the defendant, and he testified that at one time the steering wheel did not work well, but that he had had it fixed in Los Angeles, since which time he had had no trouble with it.

The witness Robbins testified to examining the car shortly after the accident, and to finding the steering arm of the car bent forward to such an extent (2 1/2 inches) that it was possible to turn the car to the right but not possible to turn it to the left. It was evidently this testimony which influenced the court in reaching the conclusion that the car was not in proper condition to be controlled by the defendant. As we read the evidence, the condition of the steering arm testified to by Robbins was the result of the accident, for the reason that Mrs. Proctor at no time testified that the car could not be turned to the left by defendant, but she did testify that while driving "it (car) hit a bump and then the car went to the left and quite a little way to the left." Furthermore, the defendant testified:

"Q. Now, after you had gotten about five miles from town you turned around? A. Yes, sir.

"Q. Was that just on the other side of Mr. Gregory's house was it not? A. Yes, sir.

"Q. Which way did you turn, to the right or to the left? A. Turned to the left."

After the above testimony was given, the plaintiff was recalled, but did not deny the above testimony; hence it stands unquestioned that the car was turned to the left only a few minutes before the accident, which clearly conclusively disproves the theory that there was something wrong with the steering gear prior to the accident.

For the reasons given, the order and judgment must be reversed.

Counsel for appellant also contend that the judgment should be reversed for the reason that it was entered subsequent to the death of Mrs. Proctor and prior to the substitution of the administrator of her estate.

We do not deem it necessary to decide this question, but in view of the fact that our statute applicable to the situation was taken from California, we invite attention to the following cases: Judson v. Love, 35 Cal. 463, at page 469; McCreery v. Everding, 44 Cal. 284; 1 Cal. Jur. p. 59.

It is ordered that the judgment and order appealed from be reversed and that the case be dismissed, at cost of plaintiff.

ON PETITION FOR REHEARING October 1, 1934 36 P.2d 359.