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Knock v. T. & G. R. R. Co.

December 31, 1914


Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

Campbell, Metson & Brown, for Appellant.

Berry & Cole and V. S. Thomas, for Respondent.

By the Court, Talbot, C. J.:

The plaintiff, a man 29 years of age, with eleven years of experience in railroading in various positions, and earning on an average about $170 a month as a conductor and brakeman, instituted this action to recover $25,500 damages for the loss of his right forearm, which was crushed between the couplers of ore cars while he was endeavoring to effect a coupling. The accident necessitated the amputation below the elbow. A verdict was rendered in favor of the plaintiff for the full amount claimed. On this appeal from the judgment and from the order denying the motion for a new trial, it is contended that the evidence is insufficient to justify the verdict; that misconduct of counsel for respondent warrants a reversal; that the court improperly instructed the jury; and that the damages are excessive.

[1] The opening brief gives a careful analysis of the

[38 Nev. 143, Page 145]

conflicting testimony. At other times and on the previous day he had acted as conductor of the appellant company. On the morning of the accident appellant was serving as brakeman. On his theory of the case, and under his testimony, the engineer backed up twice on his signal, but no coupling was accomplished on either compact, and for the purpose of ascertaining whether ore had fallen into it he went to examine the knuckle of the car, which was one of four or five desired to be coupled to the cars attached to the engine, and while he was making such examination the engineer, without signal, backed up the third time and crushed respondent's arm. His evidence in this regard is contradicted by the engineer and fireman, and appellant claims that the accident resulted from respondent's own carelessness in trying to make a gravity coupling while the cars, which were free from the engine, were moving on the grade. Under the conflicting evidence it was within the exclusive province of the jury to determine whether the accident was caused by the backing up by the engineer without signal, and, if it was so caused, the plaintiff is entitled to recover.

[2] For appellant it is also claimed that Knock should have been aware of the broken tongue in the knuckle which failed to couple, because, on the previous day, while he was acting as conductor, the engineer, owing to Knock's failure to signal, had backed into some cars, including this one, with such force as to break a knuckle on another car upon which a new knuckle had been placed, after examination by the company's inspector. If the tongue in the knuckle were broken on the previous day, the inspector failed to detect it, and the failure of Knock to become aware that it was broken was not such carelessness, or want of care on his part, as would warrant the engineer to back up without signal.

[3] It is urged that the case should be reversed because the plaintiff's testimony is contradicted by physical facts. If any physical fact made it impossible for the engineer to back up without signal and crush the respondent's arm, such fact would control, and the testimony in the case

[38 Nev. 143, Page 146]

of respondent would fall. If his testimony regarding any matter essential to his recovery were contradicted by any physical fact, the case would have to be remanded. Testimony contrary to a physical fact regarding a matter which is not controlling may weaken the credibility of the witness, but is not ground for reversal.

[4-5] It appears that one of the counsel for respondent dined at the same table with one of the jurors in the hotel, but it is not shown he paid for the juror's meal, nor that anything improper in regard to the case appeared between them. It is urged that statements made before the jury, by counsel for respondent, were erroneous, but as they were to some extent provoked, and no exception was taken to them, they do not warrant a reversal.

The court instructed the jury that, under the law of this state, common carriers are liable to employees for damages which may result from negligence of the officers, agents, or employees of the common carrier, or by reason of any defect or insufficiency due to their negligence in its cars, engines, and appliances. The statute upon which this instruction is based, the liability act of 1907 (Stats. 1907, c. 214), has been sustained as constitutional by this court in Lawson v. Halifax Mining Co., 36 Nev. 591, 135 Pac. 611, 138 Pac. 261; writ of error to Supreme Court of the United States granted, 36 Nev. 646. [6] If the accident resulted from a broken tongue and a knuckle not easily to be observed, or from the engineer backing without signal, or if the facts be as claimed by either the appellant or the respondent, there is nothing in the case which would warrant a verdict for punitive damages against the appellant, and respondent's recovery should be limited to a just and full compensation for the injury sustained.

[7] Counsel for appellant say that, if it be held that there is a liability against the appellant, and if damages are to be allowed, they are of the opinion that, considering all the circumstances, and the Burch case as a fair standard of measurement, a verdict of ...

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