Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-08-01
InE MORNING APPEAL
Carson City Nevada.
Supreme Court Decision

Supreme Court Decision
N THE SUPREME COURT OF THE
STATE OF NEVADA. No. 1923.
Andrew J. Taylor,
Respondent,
Nevada c Oregon Railway Co.,
/ Corporation,
Appellant.
Appeal from the District Court Of the
state Of Nevada, In and for WASH
loe County. Hon. w. .. Jones,
Presiding Judge.
rorreyson 4 summertield,
:. n Norcross,
For Appellants.
". z. r. Deal,
Z. r. Dodge
For Respondent.
BY Massey, c. J.
This action was brought by the res
pondent to recover from appellant |
damages for personal injuries, ply
steal pain and mental anguish caused |
and alleged to have been suffered by |
him in q wreck while in the employ |
ment of appellant as engineer on one |
of it's engines on the 3Oth of January,
1900, of which respondent was In
charge at the time.
The material averments of the COM |
plant, briefly stated, are, that on or
about the 18th day of January, 1900,
while acting as locomotive engineer
he discovered that his engine was in
need of repair by reason of the fact
that the springs connecting with the
holsters supporting the tank on the
tender had become weakened from
use, SO that the tank was permitted to
roll from side to side when the en-
CINE was in motion; that upon dis
covering the condition of the springs
he notified e. Gest, the general man
ager of appellant, of such condition,
and the effect thereof, and requested
him to have them repaired; that a
bout the same time he gave similar
notice to and made the same request
of E. Smith, appellants master OF
transportation; also at the same time
notified Gest and Smith OF what was
necessary to remedy the defect, viz:
to fasten pieces OF iron upon the ends
of the holsters so as to prevent the
tank from rolling, and by attaching
safety chains, one at each corner OF
ne truck, to prevent the trucks from
turning under the tenders. Thereup-
on Gest and Smith informed respond
ent that the engine would be repaired
as requested. Shortly thereafter and
on the 3Oth day of January. 1900.
while respondent was running the en-
CINE, and by reason OF the defect, the
tank rolled to such an extent that the
front bolster of the tender caught in
the frame of the truck of the tender
in such a way that when the tank roll
led in the opposite direction it lifted
81 n Aa1y fh<af psnpr,l L
turned under the tender, causing de-
aiiment of the engine, throwing it ov
er an embankment and throwing plain
tiff from the engine so that he fell
beneath a portion thereof and was in
jured to the extent OF having two ribs
on the lett side broken and crushed
into the LETT lung. the muscles of the
right arm were bruised and burned
allow received upon the head, caus
ing the right ear to become affected sc
that it became necessary to lance the
drum thereof: that the injury was
caused to respondent by reason OF thu
negligence OIL appellant in failing
to repair after being notified by res
pendent OF the defect.
The answer of the appellant put il
issue all the material allegations o
the COM plain, and in addition there
to set up other defenses not necessar,
to be stated, as no questions are in
volved in this appeal under the same
The case was tried before jur,
and a verdict in favor OF the respond
ent returned for $4,000 damages
From the judgment rendered thereof
and from the order denying appellant
motion for a new trial, this appeal wa
taken.
Ihe material facts controlling tn
questions naoe Oh tbs appeal III
der the assignment of errors, are a
follows:
The respondent at the time OF til
trial was tnirty-seven years Old Dull
ing period of fifteen years precGdin
he was a locomotive engineer conti1
uousiy. in the employment of the al
pellant. On or about the = day {
January. 1900, he discovered that tn
tank O: the tender OF the lOcOm(
tive which he was running was rollin
from side to side, caused by a graz
ual weakening Of the springs under
from use, and that there was DANCE
that the bolster supporting the tan
would catch under the arch bar OF tn
truck. and the tank rolling in the OF
pOsite direction would lift the true
from the track and derail the tel
der. On or about the 21st day of Jal
uary. 1900, respondent called the a
tention of the train master and gel
erai manager OF the appellant to Il
defect and at the same time eXplaine
what was necessary to remedy
The train master at that time infori
ed respondent that he would see til
general manager and have it fixe
1t required two days TO make a tri
over appellants road from Reno an
return. On or about January 25t
1900. the respondent went to the Q
fee of APPELLANTS general manage
and notified him that the tank We
rolling too much. and that it ought
be fixed right away. The general ma
aser informed him that he would hay
the needed repairs made right ava
Relying upon the promises of the @
flcers OF appellant, the respondent Co
tinued to run his locomotive until tx
30th day OF January, 1900, at whic
time on his return trip to Reno. whe
coming down grade ,Ir0r, a cIrx