I think the trial court was right in taking the case from the jury on the issue of willful misconduct. 22 Cal. Law Rev. 119, 121; 2 Cal. Jur., 10 Year Supp., Automobiles, sec. 373, pp. 575-577. On the issue of gross negligence, however, it is my opinion that the case should have gone to the jury.
Section 8793 N.C.L. 1929, as amended (Stats. of Nev. 1939, ch. 36, p. 33), provides, in part, that a judgment of nonsuit may be entered by the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the court or jury. If, on the evidence in this case, reasonable men could come to only one conclusion, namely, that plaintiff's injury was not the proximate result either of defendant's willful misconduct or gross negligence, his motion for nonsuit was properly granted. Crosman v. Southern Pac. Co., 44 Nev. 286,194 P. 839; Blinn v. Hatton, *Page 104 Mont., 114 P.2d 518. If, on the other hand, reasonable men could fairly conclude from the evidence that plaintiff's injury was the proximate result of defendant's willful misconduct or gross negligence, or both, then the case should not have been withdrawn from the jury. Weck v. Reno Traction Co., 38 Nev. 285,149 P. 65. The burden was upon plaintiff to establish a prima facie case.
In considering the trial court's ruling granting the nonsuit, this court must take as proven every fact which the plaintiff's evidence tended to prove, and which was essential to her recovery, and give her the benefit of all legal presumptions arising from the evidence. Patchen v. Keeley, 19 Nev. 404,14 P. 347; Fox v. Myers, 29 Nev. 169, 86 P. 793; Burch v. Southern Pacific Co., 32 Nev. 75, 104 P. 225, Ann. Cas. 1912B, 1166; McCafferty v. Flinn, 32 Nev. 269, 107 P. 225; Weck v. Reno Traction Co., supra; Crosman v. Southern Pacific Co., supra; Cann v. Williams Land Livestock Co., 56 Nev. 242, 48 P.2d 887.
In Gough v. Smalley, 160 Wash. 193, 294 P. 1007, 1010, the court says: "In view of the many other facts with which the record bristles, were we the triers of the fact we would have no difficulty in reaching the conclusion that the evidence failed to establish gross negligence, but we are not here the triers of the fact. We are only permitted to determine whether there was any substantial evidence from which a reasonable inference might be drawn by the jury that the driver, Smalley, did not exercise even slight care, and we are convinced that a jury believing the witnesses we have quoted might have drawn such an inference." See, also, Wigmore on Evidence (3d ed.), vol. 9, pp. 304, 305; Reid v. Maryland Casualty Co., 5 Cir., 63 F.2d 10, 11; 64 C.J., Trial, secs. 1028, 1030.
If defendant, after negligently driving off the road, had been guilty of no further negligence, I would agree that plaintiff had not made out a prima facie case for *Page 105 the jury. DeSimone v. Pedonti, 308 Mass. 373, 32 N.E.2d 612. But we have the positive testimony of plaintiff that when the car ran into the rocks she asked defendant to stop the car and let her out, but that instead of doing so, "he stepped on the gas to continue over the rocks and to plow over the railroad track." Thus defendant, having already negligently brought plaintiff, as well as himself, into a dangerous situation, increased the peril by a new and further act of negligence. This, in my opinion, was sufficient to carry the case to the jury on the question of gross negligence. White v. McVicker, 216 Iowa 90, 246 N.W. 385, 390.
My associates take the view that plaintiff's testimony relating to the happenings after the car left the road is refuted by the physical facts to such an extent as to render it valueless. The general rule that undisputed physical facts which speak the truth unerringly cannot be overcome by oral testimony is well settled in this state, as well as in other jurisdictions. Weck v. Reno Traction Co., supra; 20 Am. Jur. 1033, 1034, Evidence, sec. 1183. But, as stated in the last two sentences of said sec. 1183, "It is often said, however, that an extraordinary case is required to authorize the court to regard sworn testimony as manifestly impossible and untrue. So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except where they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other."
The general rule, though recognized in the Weck case, was held to be inapplicable under the facts in that case. The court, however, gave an example to which the rule would be applicable [38 Nev. 285, 149 P. 67]: "If two engines had approached each other along a railway track at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly how long it would have taken them to meet. In this supposed case we have two *Page 106 fixed, positive facts to figure on, namely, the distance the engines are apart and the exact speed at which they are traveling. If a witness were to testify that it took two minutes for the two engines to collide, we could ascertain the correctness of his testimony by invoking the science of mathematics." In the present case we have no such fixed, positive facts to figure on; and where, as here, we are dealing with a motion for nonsuit, the rule should be applied only when the physical facts so clearly contradict the oral testimony that reasonable minds could not accept it as the truth.
The majority opinion states that defendant did not have sufficient time or opportunity to comply with plaintiff's request to stop and let her out; it appears to be based upon the idea that by reason of the short distance from the road through the rocks to the track, and the speed of the car, the only reasonable conclusion is that the car, after leaving the road, went through the rocks and crashed into the railroad track or embankment in only a fraction of a second of time, and without being slowed up to any appreciable extent. This view, in my opinion, not only fails to give plaintiff's testimony the favorable consideration to which it is entitled on a motion for nonsuit, but also takes from the jury several questions of fact which properly should receive its consideration, for instance, whether the rocks may have slackened the speed of the car to an extent which would have enabled defendant to further decelerate its speed instead of accelerating it as testified by plaintiff. When asked at what point defendant stepped on the gas, plaintiff replied "After he hit the rocks and stopped him, he stepped on the gas to continue over the rocks and to plow over the railroad track." When considered with other testimony of plaintiff concerning the happenings after the car left the road, the words "and stopped him" could be understood by a jury of reasonable men to mean that the car was slowed up when it ran into the rocks. So, if defendant had then depressed the brake instead of the accelerator, reasonable men might *Page 107 conclude that defendant could have stopped the car entirely before it struck the railroad embankment, or at least have checked its speed to such an extent that plaintiff, if hurt at all, would have been injured much less seriously than she was. If for any reason defendant did not or could not apply the brakes, he could at least have refrained from accelerating the car's speed.
The rate of speed at which the car was traveling when it left the road is a question which should properly receive the consideration of the jury. The prevailing opinion says that from the point where the car made its start from the standing position to the railroad embankment, is forty yards. In respondent's answering brief it is said that "the car was stopped within ninety (90) feet of where the accident took place." The testimony is that after going ten yards towards Reno on the south Verdi road, the car was stopped and backed up forty yards. The prevailing opinion also fixes forty miles per hour as a conservative estimate of the speed of the car; but in view of the short distance, the muddy road, the up-grade, the sharp curve, and the start from a standing stop, it is submitted that a jury could reasonably estimate the rate of speed as substantially less than forty miles per hour.
My associates take the view that the rocks were of such a size that the car could have passed over them without an appreciable lessening of the speed. This, I think, is also a question which should have been left to the jury. Defendant's photographic exhibit 1 shows, by comparison with the seven-inch rails, that some of the rocks appear to be at least nine or ten inches long. Furthermore, they are not smooth and rounded, but rough and irregular in shape. Those nearest the railroad embankment appear to be but a few feet from it, but defendant's photographic exhibit 2 shows that the rocks extend from this point for a distance of some ten or fifteen feet at least. According to plaintiff's testimony, the distance from where the car hit the rocks to *Page 108 place it struck the railroad embankment was a few yards, not just a few feet. Nor should it be overlooked that plaintiff requested the trial court to permit the jury to view the scene of the accident. Had this application been granted, the jury could not only have seen the size, shape, number and arrangement of the rocks, but also could have observed the distance from where the car started to the place it left the road, and the distance from the latter point to the railroad embankment.
An automobile, leaving a road and running into rocks, may have its speed retarded very little by them, may be stopped completely, or be slowed up to any extent between these two extremes according to the size, shape, number and arrangement of the rocks, and other factors. This being true as a matter offact, I find myself unable to say as a matter of law that reasonable men might not conclude, from plaintiff's testimony, that when the car ran into the rocks it was slowed up appreciably at least. That defendant was able to back the car away from the embankment is strong evidence that the rocks were not such as to stop the car entirely when it was driven off the road into them; it is by no means, however, conclusive evidence that the rocks did not appreciably diminish the speed of the car when it left the road and struck them. The record is silent as to whether any difficulty was encountered in backing the car away from the railroad.
While unable to agree with the trial court that plaintiff's evidence was insufficient to make a case for the jury under the guest statute, I am in full accord with that court's statement that plaintiff's testimony should be taken most favorably to her. In this connection the trial judge, in his oral opinion, said: "We have the evidence, and it must be taken most favorably to the plaintiff, that the car struck some rocks, and that she asked to be permitted to get out and that instead of permitting her to get out the driver stepped on the accelerator and the car hit the embankment or railroad tracks *Page 109 and she was thrown through the windsheld." Thus the position of the trial court appears to be that plaintiff's evidence, even when taken, as it should be on motion for nonsuit, most favorably to her, is insufficient to make a case for the jury on the issue of gross negligence. The court does not, so far as I can see, hold that the physical facts refute the oral testimony, or make it valueless. The physical facts discussed in the majority opinion are not so fixed, or established with such certainty or definiteness, as to justify the application of the physical facts rule.
As neither of plaintiff's causes of action was based upon intoxication she could not, of course, recover on that ground; but the fact that defendant had had some drinks, that he was angry, and that plaintiff requested him to stop the car and let her out, are circumstances properly to be considered with all the other facts and circumstances in the case as having a bearing upon the question of the host's indifference to and disregard of his guest's safety. O'Neill v. McDonald, 301 Mass. 256,16 N.E.2d 866; Berry, Automobiles, Seventh Ed., vol. 5, p. 136; Fenstermacher v. Johnson, 138 Cal. App. 691, 32 P.2d 1106,1107.
The writer is not to be understood as saying that, had defendant rested his case immediately after plaintiff rested hers, and the case then been given to the jury, it would have been the duty of the jury to find that defendant had been guilty of gross negligence. The jury, after weighing the testimony, could reasonably have concluded that plaintiff had failed to make out a case of gross negligence on the part of defendant; but I think it is just as true that as reasonable men they could have found that defendant was guilty of gross negligence. The trial court, as shown by its oral opinion, proceeded upon the theory that in a case of this kind plaintiff must show such facts that the court can say, as a matter of law from those facts that there has been gross negligence. I cannot agree with that view. *Page 110 It is true that under the guest statute plaintiff has the burden of proving the alleged gross negligence; but, as against a motion for nonsuit, that burden is met when he presents substantial evidence from which a jury could reasonably conclude that defendant was grossly negligent. Gough v. Smalley, supra; Storm v. Thompson, 155 Or. 686, 64 P.2d 1309, 1312.