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


erty: but wilfully to do the thing just
mentioned would most probably de
prive him of life or limb. The proof
OF the latter should certainly measure
up to the full requirement of the
proof for fraud in civil transactions.
, The contradictions CT the conversati-
ons that the defendant and his son
Ben said that they had with plaintiff
prior to the noon Of July 3rd should
have been specific and not merely
general; for in those conversations de-
PENDANT and his son Ben distinctly
state that they informed the plaintiff
that the horse that did the mischief
was gentle and broken to work to c
wagon but had not been broken to
work to a mower and that the defend
ant wanted plaintiff to hitch him with
an old horse to work him to the NOV
er. The result Of such denial and the
jury and court so holding would be
so serious TO defendant. so nearly re:
! sembling or perhaps equaliing or sur
passing fraud, that the proof q 1t
| should. like the procf Of fraud. Be
clear. The result Of holding the alieEa-
! lions Of complaint thus proved wou,5
! put the defendant in the r 5itiOn IF
! knowingly and Geliberate.: 41ying
trap for the plaintiff: lulling all susp.-
ciOns OF the plaintiff 10 rest aud
tolling him into a position in which
plaintiff would most probably lose his
| life or receive great bodily harm. In
the case at bar the plaintiff did acJu-
ally receive great and lasting injury.
Surely no human being should be thus
! branded unless the question Of mis-
euilt be fairly presented to court aud
jury and the facts Warranting it clear
| Is and distinctly proved. This, it seems
to me. has not been done in this case,
On the following there is contradict
| ton: Defendants son Ben and a man
| by the name Of Packard testify that
when the team stopped after the frs
starting about noon Of July Sd, defend
ant came up and told plaintiff that if
! plaintiff was afraid to drive the team
! defendants son Ben or Packard would
drive it and also defendants son Ben
told plaintiff the same thing and that
! plaintiff replied, NC, | will drive the
team myself" Packard and Ben adding
in u1er testimony that plaintiff also
said . | have broken horses for
Snapp" Plaintiff in rebuttal denied
that either defendant or defendants
son Ben told plaintiff that Ben or
Packard would drive the team. Plain
tiff however. did not deny that he at
the time said No. l will drive the
team myself; | have broken horses
for Snapp.'
Such being the testimony, on an an
alysis of it what should be the result?
First Let us consider the testimony
up to the moment the team stopped
and the defendant came up. Wherein
up to that time was defendant either
false in his statements to plaintiff or
negligent in his statements or acts.
Second. Suppose at the time de-
PENDANT came up to the stopped team
that neither defendant nor his son Ben
told plaintiff that defendants son Ben
or Packard would drive the team,
would this omission have rendered the
defendant negligent? In the light Of
what, according to the testimony alb
owe stated. defendant had previously
told plaintiff, as the uncontradicted
Testimony shows. it would seem that
the defendant would not have been
negligent.
This position is strengthened by the
fact that under the general rule courts
and juries are not unnecessarily 10
find witnesses perjured, but must re-
concile testimony if it can reasonably
be done Under said rule there is per-
lhaps no necessity to find that either
defendant and his son Ben and Pack
ard committed perjury when they
swore that defendant and his son Ben
told plaintiff that the said son or
Packard would drive the team: or that
the plaintiff committed perjury when
ne Sod tnepC Iley uld not so tell him.
| tt,at 10
PENDANT and his son Ben did on the
.ccas!cn say what the three witnesses
said that they said; and it is also
| 3ui1e possible that the plaintiff did
not hear them-s say it.
If they said it and plaintiff did not
hear it at that time, there was at that
line nothing Negligent en- the part OF
defendant-an if nothing Of the kind
whatever occurred, still under the un-
:ontradicted testimony rs It appea rs
10 ne in the record On appeal here,
| cannot see wherein defendant was
negligent or in default.
1t would seem that under the facts
stated i'll the uncOntradIcted testimony
: that neither defendant nor plalnuif
could have anticipated that the horse
, would run away; that defendant had
more reason 10 Julllk 81 tHdlI tAS
plaintiff had; that plaintiffs opportu
mites for knowledge on the subject
we're equal to those of defendant; that
the unfortunate accident that caused
/ the melancholy result of injury to the
l plaintiff was one Of the ordinary risks
] Of plaintiffs employment; and thai
l while all should. and doubtless do
: much regret it. defendant cannot lie
| sally be mulcted in damages therefor
. Perhaps it may be proper to state
;, chat l have not overlooked the fac
= that the plaintiff testified that he tolt
the defendant that he would not drive
! broncos or bad horses. lat he wa'
getting too old for that" and also tina
lplaintiff testified that the defendan
told him that the horse was gentle AM
!. that defendants "old woman" coult
i drive him. The first statement doe
: not in the light of the uncontradicte;
testimony materially alter the case