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Zelavin v. Tonopah Belmont Development Co.

December 31, 1915

PETER ZELAVIN, RESPONDENT, V. TONOPAH BELMONT DEVELOPMENT COMPANY (A CORPORATION), APPELLANT.


Appeal from Second Judicial District Court, Washoe County; Cole L. Harwood and A. N. Salisbury, Judges.

H. H. Brown, J. H. Evans, and H. R. Cooke, for Appellant.

Dixon & Miller, for Respondent.

By the Court, Coleman, J.:

On July 21, 1913, the defendant, being desirous of enlarging a station on the 1300-foot level of its mine at Tonopah, sent the plaintiff, an experienced machine man, to the place, with instructions to do certain work. He drilled all of that day, and just before going off shift fired the holes. The next day he was set to work 25 or 30 feet from where he had worked on the 21st, and after drilling one hole and about a couple of inches of another a rock slid down and injured him. He was taken to the surface, where he received “first-aid treatment” from a doctor who, he alleges, rendered the services at the request of the defendant. Plaintiff protested against this doctor treating him, but finally submitted, after which he left the mine. The next day he employed another doctor, who then discovered that the arm was infected.

Plaintiff brought suit in the Second judicial district court, in and for Washoe County, to recover damages for his alleged injuries. The complaint stated two causes of action; the first being for injuries received in the mine for alleged negligence of defendant for failure to provide a reasonably safe place in which to work, and the second for alleged negligence in furnishing plaintiff an unskilled and negligent doctor to give him “first-aid treatment.” The answer denied all the allegations of negligence, and pleaded assumed risk and contributory negligence on the part of plaintiff, to which there was a reply. There was a trial before a jury, which brought in a verdict for the plaintiff. Judgment was rendered on the verdict, and defendant appeals.

1. It is contended that the trial court erred in sustaining an objection to a question as to the names of the persons from whom plaintiff testified he had borrowed $500. It was plaintiff's contention at the trial that he had been unable to work since he was injured, and that he borrowed this sum to live upon. His inability to work was urged as a proper matter for the consideration of the jury in fixing damages, and as the testimony was material on that point the defendant was

[39 Nev. 1, Page 7]

entitled to know the names of the persons of whom plaintiff claimed to have borrowed the money; for, if it could have been shown that he did not in fact borrow the money, it would have tended to discredit his testimony to the effect that he had been unable to work. The objection should not have been sustained.

2. The court did not err in sustaining plaintiff's objection to Defendant's Exhibit 3, which was a set of rules promulgated and posted at the mine, several months after the injury, by the state mining inspector. The mere fact that these rules were similar to ones posted by defendant did not justify their admission, to show the reasonableness of the rules posted by defendant. The defendant's theory is that it had a right to call the mining inspector to testify, and consequently should have been permitted to introduce the rules which he had promulgated. Unquestionably defendant had the right to call the mining inspector as a witness; but in that event plaintiff would have had a right to cross-examine him as to his experience and knowledge of mining, which could not have been done if the exhibit had been admitted.

3. Plaintiff's second cause of action, which was based upon the alleged negligence of the doctor in giving the “first-aid treatment,” was voluntarily dismissed by plaintiff; but, notwithstanding the dismissal, the court, at plaintiff's request and over defendant's objection, instructed the jury that, if it found that plaintiff was injured through the negligence of the defendant, the defendant was not relieved of liability because of the fact that the injuries had been increased through the negligence of the doctor who gave the “first-aid treatment.” While the rule of law declared by the instruction is correct, we think that in view of all the circumstances the instruction may have misled the jury, and it should not have been given. With the second cause of action out of the case, it would have been simple enough to instruct the jury that, if plaintiff was injured through the negligence of the defendant, plaintiff was entitled to recover damages actually sustained by reason of the defendant's

[39 Nev. 1, Page 8]

negligence. Had plaintiff been injured by a runaway team while being taken to the hospital, through no fault of defendant, it would not have been necessary for the court in its instructions to allude to the injury received by plaintiff while on his way to the hospital, and to have done so would have been error. Yet the two cases are similar, except that the one in question in the case at bar is likely to have been more prejudicial than an instruction in the supposed case could possibly be.

4. In seeking to reverse this case, while the appellant concedes that it is a general rule that a master must furnish his servant a reasonably safe place in which to work, considering the nature of the work to be done, it is contended that the work which plaintiff was employed in doing changed the character of the place of work as the work progressed, and consequently plaintiff must be held to have assumed the risk. It is unquestionably the rule that where a servant is employed in performing labor which necessarily changes the character of the place for safety where the work is being done as the work progresses, and consequently is likely to become dangerous at any moment, he assumes the risk. (1 Bailey on Per. Injury, 2d ed. p. 230; Finlayson v. Mining Co., 67 Fed. 507, 14 C. C. A. 492; Holland v. Durham C. & C. Co., 131 Ga. 715, 63 S. E. 290; Heald v. Wallace, 109 Tenn. 346, 71 S. W. 80; Cully v. N. P. Ry. Co., 35 Wash. 241, 77 Pac. 202; Callan v. Bull, 113 Cal. 593, 45 Pac. 1021; Con. Coal Co. v. Clay, 51 Ohio St. 542, 38 N. E. 610, 25 L. R. A. 856; White on Per. Inj. in Mines, sec. 41; Browne v. King, 100 Fed. 561, 40 C. C. A. 545; Moon Anchor M. Co. v. Hopkins, 111 Fed. 298, 49 C. C. A. 347; Kentucky Block Coal Co. v. Nance, 165 Fed. 46, 91 C. C. A. 82.)

5. While we agree with appellant as to the correctness of the rule invoked, yet if the rock which injured plaintiff was loose and dangerous when he went to the station on July 21 to go to work, and was not in fact loosened by the very work which the plaintiff was doing, plaintiff would, beyond doubt, be entitled ...


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