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Crosman v. Southern Pacific Co.

December 31, 1918


Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.

Brown & Belford, for Appellant.

Dixon & Miller, for Respondent.

By the Court, Sanders, J., after stating the facts:

The case has been presented to us with care and ability. The cause is one of the utmost moment to the plaintiff, of general importance to the defendant company, and, in some respects, is of interest to the profession.

The principal assignment of errors is involved in the discussion of the leading questions: What duty did the law impose upon the defendant to protect the plaintiff from the injuries of which he complains? Was the plaintiff guilty of negligence which directly or proximately contributed to his injuries? Was the defendant's negligence of such character as to preclude the defense of contributory negligence? Did the agreement between the telegraph company and the defendant company operate as a bar to the right of plaintiff to maintain his action?

1. Our respect for the voluminous and exhaustive briefs, embracing, as they do, an analysis of a large number of the leading authorities bearing upon these questions of law, would ordinarily impel us to follow the argument of the learned counsel and pass upon all the points discussed, but the procedure adopted as the trial confines our inquiry to the real question presented for our consideration: Are the special findings of the facts inconsistent with the general verdict of the jury? If

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they are, the law is imperative that they control the verdict, “and the court must give judgment accordingly.” Stats. 1915, p. 110.

Criticism of statutes authorizing special interrogatories is often indulged in by those who would place the verdict of a jury above the law, but from the decisions of this and other courts we are impressed that the practice is universally approved. By submitting special interrogatories the expense and delay of a second trial may often be avoided, and by this practice the law is much more effectually separated from the fact than by giving hypothetical instructions. Lambert v. McFarland, 7 Nev. 159. The statute also enables the court to determine if a general verdict is due to an erroneous application of the law to the facts as actually found by the jury. Weck v. Reno Traction Co., 38 Nev. 300. The rule of construction of special findings of facts is to harmonize them, if possible, with each other and the general verdict. To justify a judgment on special findings, notwithstanding the verdict, the former must be such as absolutely to determine the controversy in favor of the moving party. Clementson, Special Verdicts, c. 8, pp. 131-149. In determining whether the general verdict or the answers to special interrogatories control, the findings are not to be aided by intendment, and the inconsistency between the verdict and the findings must be irreconcilable; that is, it must be such that no reasonable hypothesis or inference under the pleadings and evidence can remove the conflict.

In view of the findings in this case that cover every phase of the evidence, material or otherwise, we now approach the question: Can the findings be true and the verdict be permitted to stand? In the consideration of this question it must be understood that the same measure of justice, the same rule of conduct, and the same principle of law apply to the defendant corporation as to the unfortunate plaintiff.

Our construction of the pleadings is that the complaint proceeds upon the theory that the plaintiff at the time of

[42 Nev. 92, Page 104]

his injuries was lawfully upon the defendant's road. The answer of the defendant shows affirmatively that plaintiff was not there rightfully, but, on the contrary, was there in direct violation of positive instructions not to use the motor car upon defendant's tracks under any circumstances after dark. The plaintiff in his reply to the answer seeks to justify his presence upon the track after dark, and at the place of his injuries, upon the grounds that he was there in the regular course of the performance of his duties to his employer, and that the time lost in making necessary repairs to his velocipede car at Sparks prevented him from reaching the point where he was injured before dark, and it was the duty of the defendant “to use reasonable and ordinary care that the plaintiff was not injured while running said car on its tracks.” The only charge of negligence resting against the defendant is, therefore, that the defendant's employees in the moving of its switch engine in question after dark carried no headlight, or other light, to warn plaintiff of its approach.

2, 3. The court defined negligence to be “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” It is obvious that the first element of this definition is a duty to do or not to do a particular act. It applies to the plaintiff in the operation of his velocipede car, as well as to the defendant in the management and control of its engine and cars. But from the instruction given on the part of the plaintiff immediately following this definition, the jury were, in effect, told that if they believed from the evidence that the act or omission to display a headlight, or other light, was negligence, and that the plaintiff's injuries resulted therefrom, the defendant was liable; provided plaintiff's negligence ...

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