Winters v. WS HATCH COMPANY, INC. ( 1976 )

TUCKETT, Justice:

The plaintiff filed his action in the district court of Salt Lake County wherein he seeks to recover for injuries he sustained in the collision of two large trucks. The plaintiff was the driver of one of the vehicles involved in the collision. The issues of negligence on the part of the defendant and contributory negligence on the part of the plaintiff were submitted to a jury em-panelled to hear the case. The court submitted the issues on special interrogatories. The findings of the jury were to the effect that the defendant was guilty of negligence in the operation of its vehicle, to which all of the jurors concurred. Six of the jurors found that the plaintiff was not guilty of negligence which proximately caused his own injuries. The court entered judgment upon the verdict and thereafter, on motion of defendant, granted judgment notwithstanding the verdict in favor of the defendant. The judgment does not specify the grounds or reasons for the court’s action.

The accident out of which these proceedings arose occurred on February 9, 1971, upon Interstate 80, about 24 miles east of Reno, Nevada. The plaintiff was employed by F & D Truck Lines. At the time, he was driving a semi, consisting of tractor and trailer loaded with concrete pipe. The Hatch vehicle consisted of a semi-tractor pulling two tankers loaded with caustic soda. Both vehicles were eastbound.

At the place of the accident, Interstate 80 consisted of two eastbound traffic lanes and two westbound traffic lanes, separated by a median strip. Near the point of the collision, there was a truck stop with an exit and an on ramp adjacent to the eastbound traffic lanes. The defendant’s vehicle had stopped, and immediately prior to the collision, it proceeded slowly from the parking area and onto the freeway. The vehicle being operated by the plaintiff approached from the west and was proceeding at a speed of between 60 and 70 miles per hour when it collided with the rear of defendant’s tanker which had attained the speed of less than 25 miles per hour. The defendant’s driver testified that he looked toward the west but did not see the lights of the plaintiff’s truck. Plaintiff was under the impression that he had passed another vehicle immediately prior to the collision, but his memory was somewhat vague due to his injuries which rendered him unconscious, and he remained in that condition for a period of approximately five days. The collision occurred during the hours of darkness, and the evidence shows that the headlights of both vehicles were lighted. There were few obstructions to the views of the drivers, and the highway was straight for approximately one mile west of the point of impact.

A patrolman of the Nevada Highway Patrol testified that prior to trial, he, with the aid of others and two tankers similar to the defendant’s vehicle involved in the collision, re-enacted the movements of the vehicles and attempted to simulate as near as possible the movements of the vehicles involved in the collision. He testified there was a segment of the highway to the west of the accident scene where the view of the driver of the rear vehicle was obstructed when the leading vehicle was in motion. The experiment was conducted twice, and the results were similar. An expert in the reconstruction of accidents was called as a witness and from the physical factors at the scene of the collision, as well as photographs and facts he determined after talking with other drivers and examining reports filed with the Highway Patrol, testified as to the location on the highway of the point of impact and the course each vehicle was traveling prior to the impact.

The sole issue before the court on this appeal is whether the record discloses any substantial evidence to support the- verdict of the jury. A motion for judgment notwithstanding the verdict presents solely a question of law to be determined by the court. In passing on a motion of this kind, the court is not justified in trespassing in the province of the jury in its prerogative to judge all questions of fact in the case. The court is not free to weigh the evidence, and the weight of the evidence and the credibility of the witnesses are within the jury’s sole province. In considering a motion for judgment notwithstanding the verdict, the trial court must view the evidence most favorably to the party against whom the motion is made. This court must apply the same standards in its review of the case.¹ The laws of Utah and Nevada are similar in these respects.

Careful examination of the record leads us to the conclusion that there was substantial evidence upon which the jury could base its verdict. The matter is reversed and remanded to the district court with instructions to reinstate the jury’s verdict. Appellant is entitled to costs.

HENRIOD, C. J., and CROCKETT and MAUGHAN, JJ., concur.

1 . Holland v. Brown, 15 Utah 2d 422, 394 P.2d 77; Schow v. Guardtone, Inc., 18 Utah 2d 135, 417 P.2d 643; Koer v. Mayfair Markets, 19 Utah 2d 339, 431 P.2d 566; Dudley v. Prima, 84 Nev. 549, 445 P.2d 31; Sheeketski v. Bortoli, 86 Nev. 704, 475 P.2d 675.