Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1895-04-07

| INJURY 10 OUHe!S. ana T0aC II tIUUOL
under the principles of law applicable
to this case, be held liable for the ia
jury which occurred to the Plaintiff or
the 9Th day of February, 1898.
am also of the opinion tn at the in
jury which the Plaintiff received be.
longs to that class of accidents whose
occurrence is so rare, unexpected and
unforeseen that to hold the Defendant
! responsible for failure to guard
against it is to hold it to the most eX-
pensive liability and to cause it to be
come substantially an insurer against
any accident which human care,
skill or foresight could prevent. This
is higher degree Of responsibility
| than the law eXacts. The very fact
that for fifteen or twenty years or
| more the culvert in which the Plain
| tiff received his injuries had been in
the same condition and that, as ap-
pears from the evidence, no similar
accident had ever occurred, is most
cogent reason of the lack Of any ne
gligence upon the part Of the Rail
road Company in the failure to guard
this particular spot along the line Of
its road l think this case comes
within the general principle Of law
that that which never happened be-
fore and which in its character is
such as not to naturally occur to pru-
dent men to guard against its happen
ing at all, cannot, when in the course
Of years it does happen, furnish good
ground for the charge Of negligence
in not forseeing its possible happen
ing and guarding against that remote
contingency.
At most the Defendant could only
be held responsible for throwing some
snow into the culvert, or near the side
thereof, or in leaving the top Of the
culvert partially uncovered so that
some snow might fall into the cul-
vert but in this connection it is shown
by the evidence that there were three
concurring causes tending to produce
an accumulation Of snow on each side
Of the culvert as we'll as over the bot
tom thereof First The act of Mars
den in placing a bridge or plank bot
tom over the road under the culvert
Second-The high winds which drift
ted the snow into the north end of the
culvert Third-The running of the
snow-plow by Defendant over the
track above the calvert, causing more
or less snow TO be deposited on each
settled that, where two or more causes
concur to produce an effect and it can
not be determined which contributed
most largely or whether. without the
concurrence of both, it would have
happened at all, and particular par
ty is responsible only for the conse-
quences of one of these causes, a re-
covery cannot be had, because it can
not be judicially determined that the
damage would have been done with
out such concurrence, so that it can
not be attributed to that cause which /
is answerable for it. And | think /
that this principle is applicable to the
facts in this case.
Moreover. if the case was submitted .
to the jury. and the question of neg
ligence and want of due care was
against the Defendant. the
next question which the jury would
be required to consider. under instruc-
tons from the Court. would he wheth-
ar or not the Plaintiff was himself
free from fault. whether he failed to
exercise due care and. by want OF l.,
to the injury. If the OBJ
;tructions at the culvert were of such
4 character that man o. ordinary
are and prudence, under the condit-
ons which existed at the time, having
of the Instructions, would
not have attempted to pass through
he culvert without first examining
he same or taking some steps to pre-
-ent possible injury, by getting down
n the seat in the bottom of the sleigh !
II otherwise. then the Plaintiff had no
light to try the experiment of driving
Trough the culvert at the risk Of
theirs without exercising due care or
lis part
| am of the opinion that from the
ndisputed evidence in this case it
learly appears that the Plaintiff was
imself guilty Of negligence which
to the unfortunate injury
'hih he received.
The Supreme Court of the United
tates have repeatedly declared that,
Though the question of negligence g