Price v. Sinnott

Collins, C. J., and Craven, D. J.,

concurring:

We concur in the authorities, reasoning and result announced in Mr. Justice Batjer’s opinion. However, there are some additional reasons which should be expressed in order that the import of that opinion not be misinterpreted.

There is no doubt under present authority, as stated in Mr. Justice Thompson’s dissent, that absent a motion for directed verdict under NRCP 50(a) we may not review the sufficiency of the evidence upon appeal. But that is not the issue on this appeal. Considering every miniscule part of evidence and testimony before the lower court, nothing refutes the physical facts that Delbert Green died in Room N of the Sinnott Motel from carbon monoxide poisoning and the only source of that poison was the improperly vented gas wall heater. From the record on appeal before us, those physical facts are conclusive.¹ That is the only explanation of his death.

We seriously considered ordering the lower court to enter a judgment n.o.v. in favor of appellant on the issue of liability and remand of the case for retrial only upon the issue of damages. That action would have effectively precluded the difficulty suggested by Mr. Justice Thompson in the last paragraph of his dissent.

It is possible, however, on retrial defendants may be able to present additional evidence not presented in the first trial which conceivably could change the conclusiveness of the physical facts in the present record. We think, in fairness, they should be given that opportunity.

There would be extreme prejudice to a party in an unusual case such as this where counsel, through lack of legal appreciation, oversight or carelessness fails to make a motion for a directed verdict and judgment n.o.v., thereby ostensibly precluding us from reviewing the sufficiency of the evidence in the lower court. We are compelled to ameliorate the absoluteness of that interpretation of Rule 50 in the unusual situation presented by this case. That narrow exception is well stated by Mr. Justice Batjer in his opinion and supported by prior decisions of this court.

We believe that on retrial of this case counsel for plaintiff would not fail again to make a motion for a directed verdict and judgment n.o.v. if the evidence presented was virtually the same as in the first trial, thereby preserving for this court’s consideration the sufficiency of the evidence.

1 Physical facts which speak the truth unerringly cannot be overcome by oral testimony. Hart v. Kline, 61 Nev. 96 at 101, 116 P.2d 672 (1941). See also Week v. Reno Traction Co., 38 Nev. 285, 149 P. 65 (1915).