Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-10-23
CONTINUED From First Page


no mistake or error has been committed
at the initial or terminal office. :
DA AGE That the damages awarded
by thej jury are EXCESSIVE; that the evil
dence is Insufficient to support the YER
dict and that the verdict is against law
and the evidence are grounds on which
the motion for new trial was based 1t will
I've observed that it is alleged in the COM
plant tnat the negligence of the defend
ant in delaying the delivery of the dis
patch resulted in the plaintiff being COM
PEELED to walk out of Ogden and tramp
t. Battle Mountain a distance of more
tina three hundred and twenty miles,
and that he did so to his great worry and
distress of mind, and in the plaintiff be-
ing run over at Battle Mountain, without
negligence on his part, by a railroad car.
his leg being crushed and afterwards am
putated above the knee, all to his damage
in the sum of two thousand dollars. The
evidence with respect to the accident at
Battle Mountain shows that it was due to
the plaintiffs own negligence and fault,
besides the damages resulting to the
plaintiff therefrOm were not the natural
and prOXimate consequence of the de-
frndant's breach of the contract to deliver
said message without unnecessary delay
This violence was Withdrawn by the
court from the consideration of the Jury
and the court instructed the jury that no
damages could be awarded for mental
anguish. When this was one there was
but little left Of tha plaintiffs case on the
question of damages.
By partly walking and partly beating
his way on the railroad cars the plaintiff
arrived at Battle Mountain where the ac-
cident occurred. If it be conceded that,
st was natural and probable that he
would proceed on foot to LOvelock or
steal a ride u the trains" and that this
was what any reasonable man could have
anticipated under the circumstance
known by the defendant when the tele-
gram was received at Grand Junction.
as claimed by respondents counsel, we
are of opinion that the damages award of
$4,000, by the jury was, nevertheless
greatly in excess of the damages the
plain i t sustained at Ogden or Battle
Mountain or on the road between the two
places. other thar from the worry and
distress of mind alleged to have resulted
from his having to walk and tramp and
damages sustained from the crushing and
amputation of the leg all of which were
eliminated from the case by the court, II
seems clear that the jury must have
mainly. based their verdict on these mat
ters which were thus withdrawn from
their consideration. In this the verdict
was against the law, as given by the
court.
The judgment and order appealed from
must be reversed. 1t is so ordered.
Counsel for appellant urges objection:
to instructions given. and to the refusa
of the our to give instructions he asked
for. We are of opinion that counsel ha'
no just cause of complaint in this respect
The instructions were exceeding favor
able to the defendant and in the mail
substantially as the counsel requested.
concur: BELkNAP, c. }
Massey, J., being of counsel in the cas-
, did not participate in the above decision
: Filed October, 10 1897.
EUGENE HOWELL,
Secretary of State and ex-otficio Clerk c
the Supreme Court.
Filed with printer for publication OctC
Der 10, 1897. Eugene Howell.