Nyberg v. Kirby , 65 Nev. 42 ( 1948 )

The court has carefully considered the very well-prepared and exhaustive petition of respondents for a rehearing, also the reply of appellants thereto, and the legal questions involved.

1, 2. After such careful consideration and a review of our opinion, we are constrained to conclude that, in reaching the result we did in the opinion, we determined only questions of law, and did not add to, alter or modify in any manner the lower court's findings of fact. Indeed, the facts, to the extent known to the respective parties, were fully developed upon the trial, and have not been disputed in any important particular. We see no reason to change our holding that the doctrine of res ipsa loquitur was properly applicable, in view of the facts proven, to create a presumption or inference of negligence, which, in the absence of explanation by the respondents, necessarily, as a matter of law, required judgment for the plaintiffs (appellants). As expressed, in effect, in the opinion (65 Nev. 42,188 P.2d 1006), the legal question of res ipsa loquitur was fully briefed, and we thought when the opinion was rendered, and still believe, that no good purpose would be served by remanding the case to the District Court for the determination of matters of law, which, it is reasonable to believe, would have to be ultimately determined by this court. To do so, it seems to us, would be unnecessarily prolonging the litigation, and adding to its expense to the parties. Consequently, a rehearing is denied.