*1
(1969))
and the standard established
United
States
Wade,
v.
Since the
supra.
witness did not
testify
jury’s
in
that he attended a
presence
there was no
lineup,
enhancement
court;
of his identification in
and the
problem posed Gilbert
California,
supra, is
here in issue.
It was equally
for the
permissible
district court
find that
due
was not
process
offended
the police
conducted
lineup
in this
case. As
aspect
validity of the confrontation
depends on the totality of the
surrounding
circumstances
it.
Denno,
Stovall
All errors have been considered and are without substance.
Affirmed. J., C.
Collins, JJ., Zenoff, Mowbray, Batjer, cur. PRICE,
MARY G. Administratrix Estate GREEN, Deceased, Appellant, DELBERT v. M. C. SINNOTT, SINNOTT HILDA Wife, Husband and Doing MOTEL, as SINNOTT and MAR- Business Doing PORTEOUS, F. VIN VALLEY Business as Respondents. COMPANY, PROPANE No. 5728 November *2 Stone,
Flangas & Vegas, of Las for Appellant. Dixon, Wait, Vargas, P. Steven Richard Bartlett Walther, T. Reno, for Respondents.
OPINION Court, Batjer, theBy J.: Green, truck, Delbert a driving diesel on a from Phoe- trip
nix, Nevada, Arizona to Weed Heights, Mina, stopped in Nevada, shortly after midnight on November 1964 and registered at motel owned by the respondents, C. M. Sinnott and Hilda Sinnott. He was assigned to “N” and late room that The uncon- that room. discovered in was body his afternoon monoxide of carbon that he died revealed tradicted evidence there was discovered was body the time his At poisoning. and full burning capacity, room at heater in the gas operated window was open. the bathroom Hale, safety 23, 1964, inspector M. George On November Nevada, examined of Petroleum Board for the Liquefied He found room of “N”. system and ventilation heating were into spilling the heater from combustion products eaves extend above the did not and the vent pipe room of and the regulations statute as building required of the Nevada, but termi- instead Board of Petroleum Liquefied below the eaves. wall feet nated outside the exterior several into combustion spilling Although products Hale found even trace of carbon monoxide any “N” he did not find room Mar- The respondent, with all the doors and windows closed. vent room “N” Porteous, that the F. aware although vin of the Sin- rooms many as well as the vents from of the other maintained, con- and Motel were not installed nott properly use at the M. C. Sinnott for tinued to furnish gas to propane motel. suit as administratrix brought Price Mary G.
Appellant and Hilda M. C. Sinnott against the Estate of Delbert Green Motel, Mar- Sinnott, the Sinnott owners and operators Porteous, Company, as Valley Propane vin F. business doing use in to the Sinnots for gas who liquefied supplied petroleum the motel. a verdict returned jury before a which was tried
The case against plain- defendants (respondents) in favor new moved for a The appellant tiff (appellant). (1) disregard by was a manifest There that: grounds court; (2) that the verdict was instructions evidence; (3) over the specific plaintiff’s
trary jury. when instructed the court erred it objection *4 was denied. motion appellant’s that the district court grounds the is taken on appeal This (2) the and erred in jury, instruction to
(1)
gave prejudicial
new
for a
trial.
motion
denying appellant’s
to
an innkeeper
of this state requires
The
law
present
to a minimum
as to reduce
establishment so
lodging
his
operate
The evidence
gas poisoning.
or
asphyxiation
the
possibility
in room “N” as well
gas heater
concerning
venting
the
of the
car-
room as a result of
Delbert Green in that
as the death of
obligation
the
was not met.
show that
poisoning
bon monoxide
Meeds,
447.1401
590.525.2
NRS
and NRS
Holcomb
(Kan.
Feldman,
(Pa.
1952);
P.2d 239
The the to the admitted who heaters, had the faulty gas that he observed the venting had called to of certain oper- that he this defect attention failed operators ators the motel and when the to correct continued to dangerous liquefied situation he fuel. supply gas knowledge dangerous When company acquires duty dition it is its until the defect supply to terminate is Co., (Kan. corrected. Miller Gas v. Wichita 1934). turn to contention
We consider the that a instruc- prejudicial given. tion was The instruction prompting appellant’s complaint legal involves the effect of a violation of a rule promulgated by Nevada Gas Liquefied Petroleum Board. provided That rule that “natural draft extending through vents walls shall not terminate outside adjacent outside to walls or below eaves or The draft vent parapets.” extending from room “N” terminated eaves below the of motel and was in vio- of the lation rule. The instructed that “. . . one of, who, knowledge who has exercise by or of reasonable of, should have diligence, knowledge fact that he is per- gas mitting appliances operate to in violation of the foregoing regulations rules and the Nevada Petroleum Liquefied Gas negligent Board as a matter of law. . . .” appellant’s assertion of error in the instruction is based the fact that rule knowledge on before lia- required urges could and that a bility imposed, violation of the rule to se gives negligence per rise without regard knowledge every 1, July 1957, any 1NRS 447.140: hotel “1. In built after closet, room in which a bathtub water or shower is installed must be square ventilated the outside means of a of at air window least 3 feet, satisfactory provided. unless mechanical ventilation is prior July In “2. hotels built without windows containing closets, showers, rooms water bathtubs or suitable ventilation provided required by duly shall be as the state health officer or his agent.” authorized equipment 590.525: 2NRS “All shall be installed maintained operating rules, conformity regula in a and in safe condition with specifications promulgated published adopted, tions board NRS under 590.515.” *5 person charged. agree knowledge We is not essen- However, tial. a agree we do not that violation of an adminis- se, per
trative regulation negligence is since it lacks the force and effect a legislative Major substantive enactment. Inc., 181, (N.Y. 1960); and
Waverly Ogden, N.E.2d ed., Torts, Prosser on 3rd 203. p. rule
We of a deviation an admin- prefer from proof istrative regulation only is evidence of not negligence; negli- per gence se. Neither is with such a proof compliance regulation law, rather, due care as a matter of proof but it Gordon, evidence such Lightenburger care. 81 Nev. This best of view serves all point
interests since it accords to dignity administrative appropriate and rules affords concomitantly leeway some instances those where the rule in issue bemay and its not arbitrary violation unreasonable. necessarily was, therefore,
The jury instruction erroneous advising that the violation was negligence per error, rule se. The how- ever, benefited the and could not have appellant influenced the verdict for the respondents.
We next to turn consider whether the is entitled appellant to a new trial and we 72(a).3 conclude that she is. NRCP
Initially we believe there was indeed a manifest dis- regard jury of the instructions of the court and as a matter of law on that contention alone the court was obligated a new grant trial. know,
As reasonable men carbon monoxide is not carried around in a flask from which draught may be taken from time to time to maintain a comatose condition. The medical testimony in this case indicated that oxygen is antidote for carbon monoxide. When Green checked into the Sinnott he was away Motel any from carbon monoxide producing agency he was away agencies from such he until went room “N” with gas its heater. operated 72(a): “Any appealable judgment 3NRCP or order in a civil action proceeding may appealed prescribed or from and reviewed as rules, Any party aggrieved these may appeal, not otherwise. with moving trial, Supreme or without first for a new may and the Court sufficiency evidence, consider errors of law and may trial, remand for new whether or not a motion for a new trial has been
made.” merely pre of instructions giving *6 are not as a They given trap act in tradition.
functory
steeped
bemay
error
which
the
or a
unwary
springboard
for
be
must
ignored. They
to
given
are not
be
They
claimed.
the
to arrive
jury
be followed
they
by
must
meaningful,
the
to be
duty
jury
verdict. It is the
at a
and impartial
fair
become the
given they
and when
by the instructions
governed
not
or
If the
does
case,
right wrong.
jury
whether
law of fhe
law.
contrary
must be set aside as
to
follow them the verdict
instruction
cause4
proximate
the
followed the
on
jury
Had
instruction,
the
on
conjunction with
instruction
that
applied
would have been
for
impossible
to
evidence it
negligence,5 the
they
verdict which
reached in this case.
to reach the
them
instructions, and
by
is bound
his
on
judge
The trial
his
should have been:
a new trial one of
inquiries
motion for
instructions? Here it is
jury
apparent
Did
follow the
The refusal of the
inquiry.
the trial
did not make
judge
verdict entered
to its instruc-
contrary
trial
to set aside a
law and
within the mere discretion
tions is an error of
not
Stindt,
(CCA3d).
court. Stetson v.
607 50(a).6 At the close of the case the motion under NRCP were plaintiff believed issues apparently dispositive issues of fact for the to resolve. Even issue of proxi- mate cause is rather one always almost an issue of fact than Lines, Inc., of law. Barreth v. Reno Bus 77 Nev.
360 P.2d
negligence
This is so whether the the
per
charged
negligence
or
Mahan
ordinary negligence.
se
Hafen,
220, 225,
(1960);
v.
76 Nev.
(1967). It is solidly established that when there is no request
verdict,
a directed
question
sufficiency of
evidence to sustain the verdict is not reviewable. Christensen
Stuchlik,
(Idaho 1967);
Parsekian,
P.2d
Poland v.
1963);
However, an
to this rule is found where there
exception
is
error
the
plain
in
record or if there is a showing of manifest
injustice. DeFonce
City Miami,
Construction
v.
Company
(5
1958).
608
(1880);
Thompson,
Beck v.
Dalton,
Dalton
For the reasons cited reverse this case and direct that we *8 trial court grant new trial. J., J., concurring: and D. C. Craven,
Collins, authorities, and result announced reasoning the concur in We However, there some addi- are Batjer’s Mr. Justice opinion. in order the be in that expressed reasons which should tional be misinterpreted. that not of import opinion as stated in Mr. authority, no doubt under present There is for directed dissent, absent motion Justice Thompson’s 50(a) sufficiency may not review verdict under NRCP we on this But that is not the issue of the evidence upon appeal. and testi- every miniscule of evidence Considering part appeal. court, facts nothing the lower refutes the mony physical before that Delbert Motel Green died in Room N of Sinnott from only carbon monoxide source of poisoning poison was the vented record improperly gas wall heater. From the on us, before appeal those facts are That is physical conclusive.1 the only his death. explanation of seriously considered lower court to enter a ordering
We on the judgment liability n.o.v. in favor issue of appellant only of the case retrial dam- upon remand for the issue of ages. effectively action would have the difficulty That precluded by Mr. in suggested Justice the last Thompson paragraph his dissent. however,
It on may retrial defendants be able to possible, additional present evidence not in the presented first which conceivably change could conclusiveness of physical think, fairness, facts in the in present they record. We should be given that opportunity.
There would be extreme to a an prejudice party in unusual case counsel, such as this through where lack legal appre- ciation, oversight or carelessness fails make a motion for a n.o.v., directed verdict and judgment thereby ostensibly pre- us from cluding reviewing sufficiency of the evidence in the lower court. We are compelled ameliorate the absoluteness of that interpretation Rule 50 in unusual situation pre- sented this by case. That narrow exception is well stated by Mr. Batjer Justice in his opinion supported by prior deci- sions of this court.
We believe that on retrial of this case for counsel plaintiff would not fail again to make motion for a directed verdict and judgment n.o.v. if evidence was presented virtually trial, same as the first thereby court’s preserving consideration the sufficiency of the evidence.
Thompson,
J.,
J.,
Zenoff,
with
concurs,
whom
dissenting:
1. The
result reached
majority
does not follow the
reasoning expressed. The
holds that
opinion
liability was
law;
established as a
was
matter
that it
for the
impossible
find for the
defendants. If this is the case another trial
on that issue should
Such
order
ordered.
an
concedes
is a
liability
fact issue for jury resolution
retrial. It
to order another trial
inappropriate
simply on
that a
hope
different result
reached
might be
which will be more pleasing.
1Physical
speak
unerringly
facts which
the truth
cannot be overcome
testimony.
Kline,
oral
Hart v.
610 question this case. That a fact in Liability question
2. is the defendants. and the found for fully jury was explored that determination. support evidence to There is substantial Delbert conflicting. was cause The evidence on proximate was It poisoning. carbon monoxide Green died of apparently gas of the venting that theory only improper the plaintiff’s could the introduction room explain heater in Green’s motel Yet, is uncontradicted system. his it carbon monoxide into was the deceased was when open that the bathroom window an witness who expert inspected found. The offered plaintiff after shortly two different occasion tested the heater on air in He carbon monoxide present found no tragedy. that the heater was not and concluded on either occasion closed, the with the room These tests were made defective. shut, full and the heater turned to capac- windows and doors conjectural” “it to ity. The witness stated that would gas clude that carbon monoxide fumes emanated from heater the date of death. This is relevant and substantial on the cause The was jury evidence. casts doubt of death. upon It had that free to that evidence find accept plaintiff on issue of causation. failed to sustain her burden of proof majority 3. As noted the contention opinion, in a was not liability presented was established as matter law to the trial court motion under Rule 50. The by appropriate challenge to do so a to the sufficiency failure forecloses on authorities cited in the majority the evidence The appeal. so declare. failed to for a directed ver- Having move opinion moving was liability, dict on from later plaintiff precluded for a Lehtola v. Brown Nevada judgment n.o.v. Corp., (1966). Nev. her Despite procedural may sufficiency that we now review suggests default she the evidence since she did move for a new trial ground, This is without substance among suggestion others. relating since Rule 59 new trials was amended in 1964 evi- ground eliminate as a for new trial of the “insufficiency Day, dence to the verdict.” Sierra Pacific Power Co. v. justify 391 P.2d purpose Nev. was a its substituting trial from preclude amendment for that of the view of the evidence in case where verdict, had to move for a or the losing failed directed party If court on own had directed verdict. trial court its case, such a granting surely new from precluded trial, court, removed atmosphere further from such relief. granting foreclosed from “we key 4. The to the is the statement majority opinion *10 clearly this case evi- injustice believe the manifest evidence, dent . . .” an subjective This is a evaluation of function, an intrusion in which activity should time engage. If the defendants win second review, and the “injustice” matter is submitted for will the to be in that majority continue “manifest?” event a Perhaps this court will conclude two trials of fact question about all our should that one system offer. We believe is enough. NOLAN, CO., JOE dba NOLAN REALTY BROKER’S 1025, Appellant, LICENSE NO. THE STATE NEVADA, COMMERCE, OF DEPARTMENT OF Respondent. DIVISION,
REAL ESTATE
No. 5774 November 4,
Foley, Shoemaker, Garner & of Las Vegas, for Appellant. Crawford, Joseph C. of Las Vegas, Respondent.