Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-04-03
SUPREME COURT DECISION.


VIC must HOJ forget lildJ the nlalntlG,
who, without contradiction. was shown
to be an experienced teamster, testi-
fed that the horse was the worst he
ever saw. and that another witness
stated that defendants horses had the
general reputation Of being a mean,
bad Let. This court has repeatedly held
that in case of conflict it will not set
aside the verdict, if there is any sub
stantial evidence to support it, and the
testimony of larger number of wit
nesses to different state Of facts is
no ground for reversal. State V Buralli
q Nev.-71 P. 537. 1t is also the we'll
established rule that questions relar-
ing to the weight of the evidence are
for the trial court which has Opp0rtIi-
mites for observing the hearing AMI
demeanOr of the witnesses, and is bet
ter able to judge regarding the force
and effect which should be given their
testimony, and the order e the dis
trict judge granting or refusing q NO
ton for a new trial on that GROUND
will be sustained. Golden Y. Murphy.
y New p. G25 and cases there cited.
II must be conceded rhat the duty #
this court in the case at bar is not
to determine between the opposing
statements of witnesses, but to acer
tain whether there is sufficient evi-
denca to support the verdict and iUdg-
ment if ali testimony in conflict with
that favorable 10 the piaintif be u
nOred. Applying these legal principles
and the further doctrine that the plain
tiff assumed the risks incidental to
the employment which he knowingly
accepted and for a consideration, his
wages, agreed to pursue, We should
consider carefully the work he was
willing to undertake and whether the
statement Of the defendant led him
into dangers which ne sought to av-
old. The fact that the defendant sail
to the men at the breakfast table on
July first or at another time or place,
that he wished them to drive young
horses with old ones to the mower did
not make it incumbent upon the plain
tiff to do So Although the other men
were willing to chance the dangers
which might follow and consequently
would be unable to recover for injuries
resulting. the plaintiff was quite at
liberty to decline to assume these
risks and according to his own tes-
timony, this he evidently and
by due care endeavored to DO.
He sta ed that he told the de-
PENDANT that he would not drive any
broncos, or bad horses; that he Offerel
to work his own team: that the lie
PENDANT told him that the horse was
gentle, and he denies that the defenl
ant or his son Ben offered to have
the latter or Packard drive, or that lie
was tod anything regarding the horse
except that he was gentle and that de-
PENDANTS old woman could drive him.
Under the legal assumption, binding
on this court as indicated, that the
jury relied upon plaintiffs testimony,
and considering the undiSputed cir
cumstances that after dinner on the
fatal day the plaintiff hitched to the
machine the gentle team which he had
worked in the forenoon and that when
they brought him the buckSkin horse
in place of a slow one. that he asked
if it was gentle, that he had previously
told defendant that he would not work
any brOncOs or bad horses, fair con-
struction of plaintiffs testimony would
have warranted the jury in concluding
that plaintiff had no previous know
ledge regarding this horse and he did
not know whether he had been worked
to a mower. and that by defendants
assurance that he was gentle and that
his old woman could drive him, he was
induced to start with him and was
led into the accident which followed,
and into the very danger which he
had notified defendant he wished TO
avoid The defendants recommenda-
tion of the horse under the plaintiff 5
testimony would naturally apply to the
work in hand and was broad enough
to include it's gentleness when worked
to mower. Defendants statements had
the tendency to induce the belief that
all his horses were gentle and that
this one was safe for a woman %
drive Against this the plaintiff intro
duced evidence tending to show that
defendants horses had the general
reputation of being a mean. bad lot,
and testified that the buckskin was
tie worst he ever saw The defendant
and other witnesses for him stated
that this horse had been broken 20
work to the wagon in the previous
February or March; that he had been
driven from GOlconda to the ranch
with a band of horses and worked in
wagon there two weeks, before the
accident and that at no other time
since he was broken has he shown any
u1SDCSlllOu W q dS buNh VI MN
Admitting this to be true, still the e.
PENDANT as a rancher experience IN
such animals. must have been are
that horse which was not broke IN
til he was seven or eight years ii
and then late in the winter whe1 re
was likely to he in poor flesh ard
spirit, would. if taken up in June CT
July when t1e crass is good and he
is fat. be liable TO cause trouble when
hitched to a moving machine for the
first time. instead of being gentle en-
ough for woman to drive. The facts
within the knowledge Of the defendant
and unknown to the plaintiff, woul6
hardly warrant such an assurance d
extreme gentleness, one which would
be likely to induce timid man or won
an to drive him. 1t lis apparent tina
the plaintiff wished to avoid dango
ana that the defendants remark, n:
testified to by the plaintiff, which gave
the horse a higher recommendation
than tho circumstances known to tn: