DEISS v. SOUTHERN PACIFIC COMPANY Et Al.
Deiss v. Southern Pacific Co.
Ducker, C. J.: I concur.
DEISS v. SOUTHERN PACIFIC COMPANY Et Al.
DEISS v. SOUTHERN PACIFIC COMPANY Et Al.
No. 3078
August 3, 1935.
47 P. (2d) 928.
Brown & Belford, for Appellants:
C. E. Robins and Merwyn H. Brown, for Respondent:
OPINION
By the Court,
Taber, J.:
On the afternoon of December 2, 1930, at the city of Winnemucca, Christian Deiss, for some unknown reason, drove his automobile directly in front of appellant company's freight train, "Extra 4373 West," the engine of which collided with said automobile at a point where Bridge street crosses said company's tracks. The automobile, with Deiss in it, was picked up and carried on the pilot of the engine until the train stopped at the station — the engine stopping at a point approximately 1,287 feet from said Bridge street railroad crossing. Deiss was here removed from the automobile and taken to a hospital, where he died on the following day; death being due, not to physical injuries, but to profound shock.
Respondent, Deiss' widow, brought this action as administratrix of his estate to recover damages from appellant company and appellant B. Thoni, engineer operating, the engine at the time of said accident. Appellants filed a general demurrer, but so far as the record shows the demurrer was not presented to or ruled on in the trial court. Appellants later answered the complaint, denying any negligence on their part and setting up two affirmative defenses alleging contributory negligence on the part of Deiss. In her reply to' the new matter in said answer, respondent denied that Deiss' negligence alleged in the two affirmative defenses contributed to or was the cause of his death.
The case was tried with a jury in the Sixth judicial district court, county of Humboldt. In his opening statement, counsel for respondent admitted that Deiss was careless in driving his automobile onto the crossing directly in front of the oncoming train, but told the jury that a verdict would be asked upon the ground of appellants' negligence in not stopping the train within some 350 feet from the point of collision.
At the conclusion of respondent's presentation of evidence, appellants moved for a nonsuit, which was denied; whereupon they rested, and then moved the court to direct the jury to find a verdict for the appellants. The court also denied this motion. The jury returned a verdict for respondent in the sum of $5,000. Appellants moved for a new trial, which was denied. Thereupon appellants appealed to this court from the judgment, and from the order denying a new trial.
Appellants contend that the complaint fails to state facts sufficient to constitute a cause of action. Respondent argues that this objection has been waived by appellants, and that the defect, if any, has been cured by the verdict, for the reason that the point was not urged in the court below. Counsel for respondent are in error on this point; for, while in many states such defect may be waived or cured, it is settled in Nevada, as pointed out in appellants' closing brief, that where this defect exists, it is not waived, or the defect cured by verdict, by reason of the fact that it was not urged in the trial court. Nielsen v. Rebard, 43 Nev. 274, 183 P. 984; Nichols v. Western Union Tel. Co., 44 Nev. 148, 191 P. 573; N. C. L. sec. 8601.
It is true, however, as stated in Nielsen v. Rebard, supra, that "courts do not look with favor upon objections of this kind when made for the first time in the appellate court"; and respondent is correct in her position that after verdict the complaint will receive a liberal construction. Baldwin v. Wells (Mo. App.), 27 S. W. (2d) 435; Gynther v. Brown, 67 Or. 310, 134 P. 1186; Stevens v. Westport Laundry Co., 224 Mo. App. 955, 25 S. W. (2d) 491; Blashfield Cyc. of Automobile Law and Prac. (Permanent Edition, 1935), sec. 5932.
To better understand appellants' contention and this court's ruling thereon, the appropriate portions of respondent's complaint are here given:
"That on the 2d day of December, 1930, and for several years prior thereto, said portion or part of said railroad and tracks and the space between said track and that immediately contiguous thereto were frequently and constantly used as a passage or crossing way by the public generally, in walking, driving automobiles, and passing and repassing and along, over, and across the same, all of which was with the knowledge and acquiescence of the defendants, so that and by reason thereof it became and was the duty of the defendant, Southern Pacific Company, and its servants, and particularly the defendant, B. Thoni, in charge and control of its locomotive engines whilst operating and running said engines near to and over and along said .portion or part of said railroad and tracks to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them.
"That on the 2d day of December, 1930, the said Christian Deiss, then and there occupying and driving an automobile, ran the same in front of an engine then attached to a train of 77 cárs, and known as Train Extra West No. 4373, belonging to the defendant, Southern Pacific Company, and in control of the defendant, B. Thoni, who was then and there the engineer on said engine.
"That at the same time, the said engineer had a continuous, full and unobstructed view of the said Christian Deiss, then and there driving said automobile upon said railroad and tracks, for the distance of about fifty yards.
"That the said train so operated by the said defendant, Thoni, was being operated at a speed of about thirty miles per hour.
"That the defendant, Southern Pacific Company, and the defendant, Thoni, its locomotive engineer and servant in charge and control of said locomotive engine, carelessly and negligently failed to discharge their duties as aforesaid and did not use ordinary care, or any care whatever to keep a reasonable - lookout to discover the said Christian Deiss aforesaid as it was his duty to do, but he kept no reasonable lookout whatever, and that the said engine ran into and carried the said Christian Deiss and the said automobile in which the said Deiss was then and there seated, a distance of more than 1,100 feet and by reason, whereof the said Deiss, on the 3d day of December, 1930, died from shock to his nervous system.
"That from the position of the defendant Thoni, and from his place in and on said engine, the said engineer could have stopped said engine and cars in a distance of 250 feet, and that the life of the said Christian Deiss would thereby have been saved.
"That the said defendant, Thoni, then and there and at the time of striking the automobile of the said Christian Deiss, knew, or had good reason to believe that the said Christian Deiss was not aware of the danger the said Christian Deiss was then in and that the engineer, the said defendant Thoni, saw the said Deiss in such a position and in time to prevent injury to the said Deiss, and in time to have prevented the said Deiss from dying of shock.
"That the said Deiss, at the time of his death, was of the age of about 57 years."
The basis of the last clear chance doctrine, as set forth in the 1935 permanent edition of Blashfield's Cyclopedia of Automobile Law and Practice, is this: "A plaintiff who has negligently placed himself or his property in a situation of imminent peril and is either unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover damages of the defendant who negligently inflicts injury, if the defendant could have avoided the injury after discovering the plaintiff's peril." Vol. IV, p. 536.
The complaint in the case at bar, while imperfectly drawn, contains, either directly and positively on the one hand, or by necessary implication or reasonable inference on the other, all the essential elements of a last clear chance case. That deceased was in a position of peril from which he could not extricate himself clearly appears from the allegation that he and the automobile he was driving were picked up by the pilot of the engine when the train was traveling about 30 miles per hour and carried more than 1,100 feet. It is expressly alleged by direct allegation that it was the duty of defendant and its servants "to exercise ordinary care and to keep a reasonable lookout for such persons as the defendants might reasonably expect to be upon or dangerously near to and about to go upon said railroad and tracks at the part or portion thereof aforesaid in order to discover and avoid injuring them." It also appears from the complaint that defendants had actual or constructive notice of deceased's peril. The allegations of the complaint are sufficient to show, further, that defendants, after- they became aware or should have become aware of deceased's peril, had the present ability, with means in hand, to have averted Deiss' death, that they failed to do so, and that by reason thereof Deiss lost his life. Pollard v. Oregon Short Line R. Co., 92 Mont. 119, 11 P.(2d) 271; Baldwin v. Wells, supra; Stevens v. Westport Laundry Co., supra; Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482; Louisville & N. R. Co. v. Scott, 222 Ala. 323, 132 So. 29.
There does not appear to be any direct or positive allegation in the complaint that defendants, after Deiss' peril was or by the exercise of ordinary care should have been discovered, failed to use ordinary care in not stopping the train within the distance it could reasonably have been stopped; but, as stated in Illinois Cent. R. Co. v. Tolar's Adm'r., 169 Ky. 114, 183 S. W. 242, 244, "a failure to use ordinary care to avoid injuring decedent, who was a member of the public, after his peril was or might have been discovered by the exercise of ordinary care, was necessarily included in the charge that the engineer failed to keep a lookout, and failed to take such care as would protect the public at the crossing."
Appellants next contend that there was no evidence proving or tending to prove that Thoni, the engineer, saw the deceased, and that hence the last clear chance doctrine does not apply. We are fully aware of the numerous decisions of courts of high standing- supporting the rule that actual perception by a defendant of plaintiff's peril is necessary to bring a case within the humanitarian doctrine. This court, however, is clearly satisfied that the better rule makes actual perception unnecessary, and that if the defendant "would have discovered plaintiff's situation and thus had reason to realize the plaintiff's helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise" [Restatement of the Law, Torts, vol. 2, sec. 479], the case comes within the aforesaid doctrine [Week v. Reno Traction Co., 38 Nev. 285, 149 P. 65; Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, 139 Md. 86, 114 A. 693; Berry, Automobiles (7th ed.), p. 420; Linney v. Chicago, M. St. P. & P. R. Co., 94 Mont. 229, 21 P.(2d) 1101; Thompson's Commentaries on the Law of Negligence, sec. 1629; 2 Sherman & Redfield on Negligence (5th ed.), 783]. It may be observed here that it was the duty of the engineer and fireman to keep a vigilant lookout as they were approaching the Bridge street crossing. Pollard v. Oregon Short Line R. Co., supra; Payne v. Healey, supra; Smith v. Chicago Great Western R. Co. (Mo. App.), 282 S. W. 62.
We have next to consider appellants' claim that there was no evidencé proving or tending to prove that the train could have been stopped in a shorter distance than it was. This contention is wholly without merit. The witness Wrede testified that the train started to slow down when it was about opposite the center of the Southern Pacific warehouse, and that it came to a gradual stop 30 or 35 feet east of the yardmaster's oifice. Witness Davis testified that the train began to make a slow stop some 300 feet west of the Bridge street crossing;, that it began to "slow up slowly. He made a slow stop." Witnesses Davis, Beach, Wagner, and Lillie testified regarding emergency and service application of air brakes; the high class of equipment on the Southern Pacific engines, including the engine that hauled the particular train which figured in said accident; that such a train could be stopped in from 300 to 400 feet. There was ample evidence to justify its submission to the jury on the particular issue in question. Westerdale v. Northern Pac. R. Co., 84 Mont. 1, 273 P. 1051; Citizens' St. R. Co. v. Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778; Payne v. Healey, supra; McMahon v. Joplin & P. R. Co., 96 Kans. 271, 150 P. 566; Hoyer v. Lake Shore Electric R. Co., 104 Ohio St. 467, 135 N. E. 627; Cleveland C. C. & St. L. R. Co. v. Henson, 54 Ind. App. 349, 102 N. E. 399. In making out a prima-facie case, we do not consider that it was necessary for plaintiff in the court below to show that the service brakes on the engine had not been applied at the time of the collision, or that the brakes on the engine or train were in good condition. Such matters were peculiarly within the knowledge of the defendants and, if true, could properly have been offered in behalf of the defendants.
In connection with the matter now under discussion it is not amiss to observe that where, as in this case, no evidence was offered in behalf of the defendant, the evidence is to be construed most favorably for plaintiff, and every fact must be deemed established which the evidence tends to prove. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore Electric R. Co., supra; Gambling v. Missouri Pac. R. Co. (Mo. App.), 40 S. W.(2d) 766; Gardenhire v. St. Louis - San Francisco R. Co., 224 Mo. App. 586, 31 S. W. (2d) 113; Gordon v. Postal Telegraph-Cable Co. (Mo. App.), 24 S. W.(2d) 644.
The fourth point urged upon the court by appellants on this appeal is that there was no proof that the negligence of appellants, if any, was the proximate or any cause of the death of Deiss. It is admitted by respondent that there is insufficient evidence to hold appellants liable for the collision, and as respondent's evidence indicated that the train could have been stopped within 350 feet of the crossing, it follows that in order to uphold the verdict and judgment of the trial court it must appear that there was sufficient evidence to warrant that court in submitting to the jury the question as to whether the shock from which Deiss died was received easterly or westerly of a point approximately 350 feet westerly from said Bridge street crossing. Appellants' position is that there was no evidence whatever as to when the fatal shock was received, or even when it is probable that it was received. Therefore, they argue, the verdict must necessarily have been based purely upon guess, surmise, speculation, and conjecture. For this reason alone they contend that the district court should not have submitted the case to the jury. In support of their argument counsel cite Giannini v. Southern Pacific Co., 98 Cal. App. 126, 276 P. 618; Cox v. St. Louis-San Francisco Ry. Co., 223 Mo. App. 14, 9 S. W. (2d) 96, and Plinkiewisch v. Portland Ry. L. & P. Co., 58 Ore. 499, 115 P. 151. In order to understand appellants' contention it is proper that a few additional facts should here be stated.
When the train and automobile collided, the automobile, with Deiss in it, was picked up and carried on the pilot of the engine to a point approximately 1,287 feet westerly from the Bridge street crossing. The automobile rested more on the right than on the left side of the pilot, the rear end extending somewhat beyond the right side of the pilot. One of the rear wheels on the automobile was crushed and one end of the rear axle, at a point about 50 feet west of said crossing, began to drag along the right side of the track, making a furrow which continued to the place where the engine finally stopped; Deiss being still in the automobile but leaning through the window of his car and holding on to an iron bar on the pilot. He was removed from the automobile almost immediately after the train had stopped. His hands, when he was being taken from the wreckage, were clasped so tightly around the iron bar on the pilot that it was necessary to pry his fingers loose. He had a look in his eyes described by one witness as "wild," and which another witness testified he would never forget. When the doctor arrived at the place where Deiss was removed from the automobile and engine pilot, he found "a very rapid weak heart action, very slow respiration no pulse." The only physical wounds were a slight scalp wound and a slight wound of the right leg. The doctor testified that the physical wounds were not such as to cause death and that death was the result of profound shock. The train was traveling about 25 or 30 miles per hour at the time of the collision. The day was warm and clear.
We are of the opinion that the district court was correct in its view that there was sufficient evidence on this issue to be submitted to the jury. It is obvious that no one- could or can say with certainty at what point between the Bridge street crossing and the place where Deiss was remo'ved from the automobile the shock became so grave as to cause death. But we are not prepared to say that where, as in this case, appellants negligently dragged the automobile some 900 feet farther than the point where the train could with reasonable and ordinary care have been stopped. Deiss being all this time alive and trying desperately to save himself, the trial court was not justified in submitting the case to the jury, nor that the jury was not justified as reasonable men in finding that the evidence preponderated in favor of the fatal shock having been received westerly, rather than easterly, from the place where the train could have been stopped. Direct or positive evidence is not always necessary on such issues. Circumstantial evidence may be and frequently is sufficient to warrant the submission of such cases to a jury. Westerdale v. Northern Pac. R. Co., supra; Hoyer v. Lake Shore Electric R. Co., supra; Cleveland C. C. & St. L. R. Co. v. Henson, supra.
Appellants assign as error the action of the trial court in sustaining an objection to a question asked Dr. Pope on cross-examination. After Dr.. Pope had testified that the physical injuries were not such as to cause a nervous shock and that Deiss died from shock, counsel, on cross-examination, asked the witness the following question: "Assuming that he (Deiss) was riding in the car across the Bridge street crossing, and that his car was struck by this engine which you saw there, and the engine was, the car was carried on the pilot of the locomotive down to the point where you saw the wreckage, or near thereby, and that Deiss remained in the car, or on the pilot until the engine stopped at the point where you saw it could you tell from those facts, if you so believe it to be a fact, at what point he received the shock that produced his death?"
To this question respondent objected upon the ground that it was not proper cross-examination. The objection was sustained. We are of opinion that this was not error. The testimony of Dr. Pope, who was appellant company's district surgeon, was confined strictly to the cause of the death. Dr. Pope did not witness the accident, and we do not believe that the hypothetical question asked by appellants' counsel comes within the scope of cross-examination. 70 C. J. pp. 626, 653-655.
Appellants assign as error the action of the lower court in giving instruction No. 22 and the refusal by said court to give appellants' requested instructions 1, 6, 8, 10, and 11. The questions of law involved in this assignment have been discussed in this opinion. We find no error in giving the instruction objected to or in refusing to give the said instructions requested by appellants.
The judgment and order appealed from are affirmed.
Ducker, C. J.: I concur.