Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-04-03
FITZGERALD, J. Dissenting.
I concur
BelEnap, c. J.

Fitzgerald, J. Dissenting.
The allegations Of the complaint are
as follows:
That heretofore. to-wtt: On or about
the third day Of July. \. D., 1901. plain
tiff vas employed by said defendant
in cutting defendants hay on the
ranch OF defendant in said (HumbOld)
county with a machine commonly
! known as a mower or moving ma
chine.
That while so employed as aforesaid
on said third day of July. said defend
ant requested this plaintiff to work
certain team OF defendants horses
on said mower.
That one of said horses was IN
known to this plaintiff who was not
acquainted with the habits nor dis
position CT said horse. never having
driven, nor worked, nor seen said
horse driven or worked prior to that
time.
That said defendant then and there
informed this plaintiff that said horse
was a broke and gentle animal.
That said defendant then knew that
said horse was neither broke nor gen
tie but he was a wild. dangerous AMI
uncomfortable animal, commonly
known as a bronco.
That plaintiff, while so employed as
aforesaid and at plaintiffs request,
| commenced working said team but
| without any fault on his part, was I'M
able to work, manage or control same,
| and said team ran away with said ma
| chine and this plaintiff, without any
fault on the part of the plaintiff, throw
| ing plaintiff therefrom violently, and
and in such manner that plaintiff was
greatly, seriously and permanently IN
| jured,' etc. ETC.
This is an action Of damages against
the defendant for the injuries that the
| plaintiff received as he alleges in the
above complaint.
If the complaint be considered in the
| nature of willful and malicious mis-
| representation and fraud under the al
| legation That said defendant then
and there informed this plaintiff that
| said horse was a broke and gentle ami
NAL.
That said defendant then knew that
said horse was neither broke nor gen
tie, but he was a wild, dangerous and
uncomfortable animal commonly
! known as a bronco" then | think the
| evidence does not support the alleSa-
| ton that defendant knew that the
I horse was "a wild, dangerous and I'M
! comfortable animal commonly known
as bronco" Could the complaint be
! considered as an action Of damages
| for negligence on the part of the de-
| PENDANT under the relations of master
| and servant between defendant and
| plaintiff? 1t would seem not. The In
| diana B. & w r. Co. V. Burdge, Ind.
| "a, D. 46; Sherman & Redfield on Ne
| gligc-cc, section 20 and note; anil
| Labatt's H1sS..lr I'D SeI'.2nt. section
SO and note 4.
! 49, tho 80" even on the
rial support the verdict OF the jury
!; = favor Of plaintiff?
While there is some conflict III the
| idence en- other points to me il
Gems, though c,herWise to my breth-
! I, that the -.--lccntr2dicted evidence
i as folloy:
Plaintiff Ira 10 defendant to work
r1r defendant in running defendants
| mower in moving hay on defendant S
| r. ch. Plaintiff was al experienced
amster and had before broken horses
ftr ma" - the name Of Snapp and
aintiff himself owned and worked
| d hCTc-s. Defendant told plaintiff
at he y SIZED i'm to work to NOW
- a horse Of defendants that had not
ben broken to work to the mower
It had been broken to work to q
= gon and that the horse was broker
a2d gentle in working to wagon;
that defendant wanted plaintiff t
work said horse with an old and gentle
horse so as to break the unbroker
horse to work to mower. An oil.
horse and the young and unbroke.
horse were hitched to a mower AM
plaintiff mounted the mower and start
| ed to drive the team; the young horse
| stopped, the other horse then stopped
also, tug came loose and was fixed
the team started again and the yOun:
horse ran away, taking with him thu
other horse and mower, the plaintiff
vas violently thrown to the groun,
and greatly injured.
On the foregoing the testimony i
rs it seems to me. uncOntradicted
scr / think the rebuttal testimony o
plaintiff does not extend to a contra
LECTION of the defendant and his Sol
Ben, as to conversations had b
them with plaintiff prior to the tim
Of the accident. to-wit. about noo
# July 3rd My brethren think Other
! wise and should the truth be as the
think, yet it seems to me that befor
brand CT such legal and moral obi
| guilty as would inevitably fall upon tn
| defendant should he be held to hav
knowingly, willfully and wantonl
placed a human being in a positio
where the most probable result woul
be death or great bodily harm to hin
] the evidence of it should be clear an
uneQuivocal. It is always held tina