The daily silver state. [volume] (Winnemucca, Nev.) 1903-1907, 1904-04-07


which he has ever since suffered. Sur
geons and others testified that both
bones of the right arm were broken
about the wrist and that the muscles
and hand were disabled. On pla ntiff .
behalf there was also proof that ex
cepting the two years previous to the
trial. the plaintiff had teamed for six
teen years and was a skillfui team
ster; that defendants horses had the
general reputation of being broncos
and mean, and on cross examination
the plaintiff testified that the buck
skin horse which ran away with the
mower was the worst that he ever
saw. that no one could hold him, that
he took the bit In his teeth and pulled
the old horse, the machine and the
plaintiff and bucked and kicked.
] The defendant testified that the
plaintiff came to the ranch with his
own horsese and worked them on q
mower for a day or two. and in the
forenoon of the third day OF July when
he was told to work a young horse
with an old one to the machine-be-
longing to defendant-when plaintiff
started the machine the young horse
held back and defendants son offered
to drive the team II he. the plaintiff.
was afraid. The plaintiff said that he
would drive them himself and he
started Off with them and he had gone
about three hundred yards when de-
fendant's attention was attracted by
plaintiff yelling: that the team ran
back to the barnyard, where they
stopped. The defendant also testified
work to a wagon. when / saw the
team running away. after Roberti fell
off the machine, the boys and I ran
toward the team to stop them. I did
not want my machine all broken up.
and after we stopped the team near
the corral, we went to where Roberti
was lying"
Two sons. Ben. Packard and a
daughter. also gave testimony to corr
roborate the father. The court In re-
versing the case remarks that the tes-
timony of the plaintiff. In its most es-
sential parts. is contrary to that given
by witnesses for the defendant. In a
long review of the case the ground is
taken that the piaintiff was given to
understand that the horses were gen.
tie. and says the court:
1t must be conceded that the duty Of
this court in the case at bar Is not
to determine between the opposing
statements OF witnesses. but to ascer-
tain whether there 10 sufficient evi-
dence to support the verdict and judg-
ment IL all testimony in conflict with
that favorable to the plaintiff be ig-
nored. Applying these legal principles
and the further doctrine that the
plaintiff assumed the risks incidental
to the employment which he knowing
ly accepted and for q consideration
his wages. agreed to pursue. we should
consider carefully the work he was
willing to undertke and whether the
statement OF the defendant led him
into dangers which he ought to avoid.
The fact that the defendant said to
the men at the breakfast table on
July first or at another time or place.
that he wished them to dive young
horses with old ones to the mower did
not make II incumbent upon the plain
tiff to do so. Defendant had previ-
ously. told plaintiff that the horse was
was gentle and that his old woman
gentle and that his old woman could
drive him. This and like statements
had a tendency to assure plaintifr that
all the horses were gentle and led the
plaintiff to assume the risk which re-
suited in his injury.
After a review Of the pleadings and
evidence we are not prepared to say
and negligence. The most important
allegations In the complaint are that
the horse was. dangerous and that the
defendant knew he was so at the time
he recommended him to be gentle.
Every man Is presumed to know what
he ought to know and, the defendant.
from his experience as a rancher with
horses. and from what he knew re-
garding the age and slight breaking
of this one, may be charged with
knowledge Of the fact that there was
danger in working him the first time
to a mower.
The opinion Is by Judge Talbot. and
concurred In by Judge Belknap.
Judge Fitzgerald. In dissenting from
the above opinion. after reviewing the
testimony at some length says:
Could the complaint be considered
as an action OF damages for negligence
on the part OF the defendant under
the relations Of master and servant
between defendant and plaintiff? II
would seem not. See Indiana B. & w.
Ry. Co. VS.. Burdge. Ind. %. p. IS: Sher-
man & Redaeld on Negligence. section
20 and note: and Labatt's Master and
Servant. section SO and note I.
Does the evidence given on the trial
support the verdict of the jury in ia
vor Of plaintiff?
While there Is some conflict In the
evidence on other points. to me It
soana fhonUh ofhArwka~ 80 ,,~v hrot n.