
    WILLIAM J. ROSE, Appellant, v. FRED H. RUSHTON, Respondent
    No. 3444
    August 24, 1946.
    172 P. 2d 157.
    
      Lewis & Hawkins, of Las Vegas, for Appellant.
    
      C. D. Breeze, of Las Vegas, for Respondent.
   OPINION

By the Court,

Taber, C. J.:

This case and that of Botts v. Rushton, 172 P. 2d 147, decided this day, grew out of the same accident. At the beginning of the trial in the instant case the court, upon stipulation of counsel, ordered “that the record and the evidence, oral and documentary, heretofore given by the witnesses testifying at the trial before this court in the case of M. L. Botts, plaintiff, against Fred H. Rushton, defendant, No. 21425, together with the records and files in this court, which trial was held during the month of December, and the testimony received subject to all objections, motions to strike, and rulings of the court, as though the same were given in the case at bar; save and except the injury here is different.” The two cases, upon stipulation in this court, were ordered consolidated for argument on the appeals.

Some additional testimony was given in the case at bar, most of it relating to the nature and extent of plaintiff’s injuries. One witness, John S. Dorough, of Las Vegas, gave some testimony bearing on the question of negligence. He testified that he was working for the fire department at Basic Magnesium, that he followed the Rushton truck out to the intersection on the morning of the accident, and that it was traveling approximately 50 miles an hour. According to witness the Rushton truck did not slow down before it swerved to the left. “The only thing that I noticed, the car drove out in front of Mr. Rushton’s truck. I don’t know whether it stopped or whether it went on; but I did notice that he swerved to miss the car that drove out in front of him.” He testified further that in his opinion if Mr. Rushton had not swerved to the left there would probably have been a crash. This witness’s testimony was not referred to by counsel for either party in the arguments in this court. His testimony that Rushton was traveling approximately 50 miles an hour, when considered with all the other testimony, is not sufficient to make it clear that the truck was going more than 45 miles per hour.

For the reasons given in the Botts case, the judgment and order appealed from are affirmed.

Horsey, J., concurs.  