GRACE HART, Appellant, v. DUDLEY KLINE, Respondent
Hart v. Kline
(TABER, J., dissenting in part).
GRACE HART, Appellant, v. DUDLEY KLINE, Respondent.
GRACE HART, Appellant, v. DUDLEY KLINE, Respondent.
No. 3337
September 9 1941.
116 P.(2d) 672.
(TABER, J., dissenting in part).
William S. Boyle and Thomas H. Grimm, both of Reno, for Appellant.
Morley Gristvold and George L. Vargas, both of Reno, for Respondent.
OPINION
By the Court,
Ducker, C. J.:
Plaintiff brought this action to recover damages for personal injuries she sustained while riding as a guest in defendant's automobile, which he was driving at the time of the accident. Her causes of action were based on gross negligence and willful misconduct. When she closed her case defendant moved for a nonsuit, which was granted.
The salient facts are: That around ten or eleven o'clock on the night of February 10, 1940, plaintiff accepted an invitation from defendant to go with him for a ride-in his automobile. The car he was driving was a 1935 Packard coupe. They proceeded west from Reno about five miles from the city limits to the Pit Club, a resort situated on the Verdi-Reno highway, route No. 1, on the south side thereof. Route No. 1 is the main traveled highway extending easterly and westerly. The Southern Pacific Railroad tracks where the accident happened are located about one hundred yards south of route No. 1, and at that point parallel each other generally. The south Verdi road, which also extends east and west at the point where the accident happened, is about twenty-five feet south of the railroad tracks. The parties'were at the Pit Club for about an hour and a half, and during that time drank four to six scotch and sodas, two of those taken by defendant being what is called "doubles." An hour or so after midnight they left the Pit Club to return to Reno. Defendant drove across the railroad tracks on a connecting road to the south of Verdi and turned towards Reno. Plaintiff objected to their returning by this road on account, as she stated, of the night being snowy and the road muddy, slippery, a "very lonesome and desolate place." After going east about ten yards on this road defendant stopped the car, and backed it up about forty yards, stopping on the road at a point west of the railroad crossing and about twenty-five feet south of the railroad tracks. They remained at this point a few minutes arguing, and then defendant said, "all right" in an angry tone and started the car forward, intending to go back over the railroad crossing and connecting road to route No. 1. From the point where he started to the crossing the road makes almost a U-turn and ascends to the crossing at an elevation of about three feet in the last twenty-five feet. It is about forty yards from that starting point to the crossing. The southerly set of railroad rails where they approach the railroad crossing on the east are on banks of earth about eighteen inches high, the rails being about seven inches high. Near this point a "few feet" from the southernmost rail are some rocks. Defendant failed to make the U-turn. The car left the road at the latter point striking the rocks and continued on until stopped by striking the southernmost rail of the tracks or embankment. Plaintiff also testified that when defendant started the car to go over the crossing, he turned it to the left with "great speed"; that when he ran into the rocks, she "sort of screamed, 'Good Heavens, stop' "; that when the car hit the rocks he continued to drive right over them and stepped on the gas and went into the mound of earth and onto the railroad tracks with terrific force. " When he hit the rocks I lost my balance and before I could regain my balance I was hurled against the windshield and my head went through it." A further version was given by her on cross-examination as follows:
"A. After hitting- the rocks, he continued on, stepped on the gas and we went right in here between the mound of earth and the railroad track with terrific force.
"Q. You continued right straight ahead to the railroad tracks? A. Yes, as if he tried to just plow right over the railroad tracks to get back into the connecting road.
"Q. And you stopped when you hit the railroad tracks, then, is that it, at that point? A. After hitting the rocks, we drove right over the rocks into the railroad tracks.
"Q. And when he hit the rocks, that is when you made the exclamation that you testified to vesterday? A. Yes.
"Q. And after you made that exclamation, then was when he hit the railroad tracks, is that right? A. Yes.
"Q. And all that at terrific speed? A. Yes, he stepped on the gas when he went into the railroad tracks.
"Q. Well, how far was that distance? A. Just a very few — just a few yards.
"Q. Just a few yards? A. Yes."
On redirect she supplemented the above by the following :
"Q. At what point then, did Mr. Kline, as you testify, step on the gas when he was over here in these rocks? A. After he hit the rocks and stopped him, he stepped on the gas to continue over the rocks and to plow over the railroad tracks.
"Q. What, if anything, then, did you say at that junction, when he pulled into the rocks? A. Told him, 'Good Heavens, stop the car and let me get out.' "
Immediately after the impact defendant backed the car through the rocks to the connecting road and drove back to the Pit Club. Plaintiff was injured about the head, and the car was damaged. Under these circumstances, we are to say whether the law required the submission of the case to the jury.
The' Nevada vehicle guest statute (Stats, of Nevada 1933, ch. 34, p. 29, 30) provides in part:
"Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of Nevada, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle.
"Nothing in this section contained shall be construed as relieving the owner or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle."
The statute defines a guest as being- a person who accepts a ride in any vehicle without giving compensation therefor. It places the burden upon plaintiff to establish that such intoxication, willful misconduct, or gross negligence was the proximate cause of such death or injury. Intoxication is not in issue.
Counsel for the parties have presented many authorities on gross negligence and willful misconduct. Gross negligence cannot be precisely defined. The best and most comprehensive definition of gross negligence, distinguishing it from ordinary negligence, and from a willful and intentional wrong, that we have been able to find, was given in Shaw v. Moore, 104 Vt. 529, 162 A. 373, 374, 86 A. L. R. 1139. It is the accepted definition of gross negligence in that state, and is as follows:
"Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a higher degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure." ,
The Vermont court adopted the above from the definition formulated by the supreme court in Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185. As stated by that court, the definition is supported by the great weight of authority in other jurisdictions.
The trial judge was thoroughly conversant with the rule, as his oral opinion shows, and properly applied it to the facts in granting the nonsuit. As a matter of law the jury could not have legally found defendant guilty of either willful misconduct or gross negligence.
The physical facts refute plaintiff's testimony as to the immediate happenings after the car left the road to such an extent as to render it valueless. Physical facts, which speak the truth unerringly, cannot be overcome by oral testimony. Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65. We have the testimony of plaintiff that the distance from where the car struck the rocks to the railroad track was a few yards. The evidence is that from the point where the car made its start from the standing position to the railroad embankment, the place of impact, is forty yards. An inspection of exhibit 1 discloses the distance from the point where the car left the road to the point of impact to be but a small portion of that distance. Physical facts demonstrate that defendant did not have suificient time or opportunity to comply with plaintiff's request to stop and let her out. Defendant could not have become apprehensive of danger until the car left the road, and in the short distance and almost split seconds given him in which to act, he could not have avoided the crash. Keeping in mind that the gross negligence imputed to defendant is alleged to have occurred between the time the car left the road and after hitting the rocks, the element of time is further reduced, and the consequent inability of the driver to act further demonstrated. The physical facts demonstrate that the events must have happened with almost as great rapidity as the successive thoughts of her mind, sudden realization of peril, followed by immediate injury. It is improbable that a person thrown off balance and engaged in endeavoring to save herself from harm would be able to take account of the amount of pressure being exerted on the throttle. Giving the testimony of plaintiff, to the effect that the car was traveling at great speed, a most conservative interpretation, and taking, for example, a speed of forty miles per hour, and also a liberal view of the distance from the point the car left the road to the point of impact, and placing such distance at thirty feet, then the time required for the car to travel said distance at said speed, would be about half a second, and it would require 128 feet to stop the car, traveling at forty miles per hour. Here defendant had about thirty feet in which to act. Stress is laid on the testimony that the rocks acted as an impediment to the speed and lengthened the elapsed time required to travel the approximate thirty feet from the time the car left the road to the point of impact. Again we have recourse to the physical facts. Comparing- the size of the rocks with other objects as they are disclosed in exhibit 1, we find the rocks not to be large boulders such as would materially block the path of the car, but they are of a size that a car with the power known to be possessed by a Packard coupe, traveling at a reasonably high speed, could pass over without an appreciable lessening of the speed. What does plaintiff say about this ? "When he hit the rocks I lost my balance and before I could regain my balance I was hurled against the windshield and my head went through it." These were crowded moments. The car would "plow" through those rocks without requiring further acceleration than the speed of forty or more miles per hour. The defendant had no difficulty in backing the car through the rocks to the road.
Failing to stop and let plaintiff out in the fraction of a second involved, and applying the gas after hitting the rocks, are the dereliction and act relied on to establish willful misconduct or gross negligence. The circumstances do not sustain the proposition. Speed and distance traveled, the exigency of the situation all refute it.
The judgment of nonsuit should be affirmed, and it is so ordered.
Orr, J., I concur.