Bernardini v. Salas

448 P.2d 43, 84 Nev. 702, 33 A.L.R. 3d 1397, 1968 Nev. LEXIS 438

• Court: Nevada Supreme Court
• Decided: December 10, 1968
• Docket: 5566
• Status: Published

Opinions

OPINION

By the Court,

Thompson, C. J.:

The issue on this appeal is whether the district court abused its discretion in granting a new trial to the plaintiff on the ground of newly discovered evidence.

A wrongful death action, premised upon gross negligence, was commenced by the heirs of a deceased guest against the driver of a Jeep. The Jeep had overturned at night while descending a narrow, steep, winding, dirt mountain road. The three occupants of the Jeep had been hunting. No other vehicle was involved. The speed at which the driver propelled the Jeep down the mountain road was relevant to the issue of gross negligence. The sole witness at trial to speed was the defendant-driver. He said that his speed was five miles per hour. No other direct testimony on this subject was offered since one occupant was killed, and the other was not contacted.

The jury returned a defense verdict which the court set aside because of the affidavit evidence of two witnesses. The court apparently believed that their affidavits disclosed their competency to give material evidence on the issue of gross negligence, and especially the speed of the Jeep’s descent before overturning.

The affidavits were given by a husband and wife. The husband was asleep in a parked station wagon on the side of the mountain road approximately 75 to 100 feet from the point where the Jeep went off the road. The wife’s affidavit does not state whether she was asleep or awake. Neither affiant visually. observed the Jeep. They only heard it. The noise of the Jeep awakened the husband. Based upon that noise the husband concluded that the Jeep was going at a “high rate of speed”; and the wife surmised that the “Jeep was going too fast for the hill,” and at a speed of “about 40 miles per hour.” Other conclusory statements, not here material, also were given by each affiant. The issue, therefore, is whether a witness is competent to testify to the speed of a vehicle upon only hearing it pass. We turn to resolve that issue and its bearing upon the limits of trial court discretion in ruling upon the plaintiff’s motion for a new trial.

One of several controls over that discretion is the requirement that the newly discovered evidence be competent, material and, if believed, would probably produce a different result. Lucey v. First National Bank, 73 Nev. 64, 69, 307 P.2d 774 (1957); Whise v. Whise, 36 Nev. 16, 24, 131 P. 967 (1913). Here, the preferred evidence did not come from witnesses who possessed competence to testify to the speed of the Jeep. A lay witness who does not see the vehicle in motion may not give an opinion as to its speed. Shaw v. Sylvester, 116 S.E.2d 351, 355 (N.C. 1960). It is not permissible to receive testimony as to speed based on sound alone. Meade v. Meade, 147 S.E.2d 171, 175 (Va. 1966); Thomas v. Dad’s Root Beer, 356 P.2d 418, 419 (Ore. 1960). Noise is not an inevitable concomitant of speed. Carstensen v. Faber, 116 N.W.2d 161, 164 (Wis. 1962).

In Patton v. Henrikson, 79 Nev. 197, 200, 380 P.2d 916 (1963), we ruled that a non-expert witness may testify to the rate of speed of a moving vehicle if he is of ordinary intelligence and has had an adequate opportunity to observe the vehicle at the time in question. We now rule that a non-expert witness is not competent to testify to the rate of speed of a moving vehicle based upon sound alone.

Stripped of the incompetent material, the affidavits mean only that the affiants heard the noise of the Jeep and were awakened by it. Surely, this evidence, if believed, would not probably produce a different result. We must conclude that the trial court, in these circumstances, exceeded the limits of its discretion in granting the plaintiff’s motion for a new trial. Other points need not be considered.

Reversed.

Zenoff and Batjer, JJ., concur.