PETER ROBERTI, Respondent, v. J. P. ANDERSON, Appellant
Roberti v. Anderson
Belknap, C. J..- I concur.
PETER ROBERTI, Respondent, v. J. P. ANDERSON, Appellant.
[No. 1650.]
PETER ROBERTI, Respondent, v. J. P. ANDERSON, Appellant.
Master and Servant — Injuries to Servant — Conflicting Evidence-Appeal — Review.
1. A verdict for plaintiff on conflicting evidence will not be reversed if there is any credible evidence to support it.
2. In an action for injuries to a servant by reason of the viciousness of a horse furnished him by his master to use, evidence reviewed, and held sufficient to sustain a verdict for plaintiff.
Eitzgerald, J., dissenting.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Humboldt County; 8. J. Bonnifield, Jr., Judge.
Action by Peter Roberti against J. P. Anderson. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
The facts sufficiently appear in the opinion.
M. 8. Bonnifield, for Appellant:
I. The evidence herein cited shows that the plaintiff was in no manner deceived by the defendant with reference to the disposition of said horse and that the plaintiff voluntarily assumed the risk incident to the breaking of the .young horse to a mower. Not only this, but his offer made to Ben Anderson and his declaration that he could work one of defendant's young horses above referred to, and that he had broken young horses for Snapp, which latter declaration he repeated, and the testimony of P. N. Muller, his own witness, to the effect that plaintiff was an experienced teamster and skilled in managing wild and dangerous broncos, show that he relied solely upon his experience and skill and not upon anything else that the defendant told him.
II. A recovery must be had, if at all, upon the facts alleged; the facts proved but not pleaded will not support the judgment. (11 Eney. PI. & Pr. 869, notes 1, 2, citing numerous cases.) A recovery by the plaintiff must be based upon the facts alleged in the complaint. (Id. 889, note 1, cases cited.)
Frank X. Murphy, for Respondent:
T. Where the evidence is conflicting and there is some evidence to support the verdict, a new trial ought not to be granted, and the verdict ought not to be disturbed. The questions of credibility of the witnesses, weight of evidence and amount of evidence are questions preeminently for the jury. (Treadway v. Wilder, 9 Nev. 71; State v. Wong Fun, 22 Nev. 336; Sacramento M. & M. Oo. v. Showers, 6 Nev. 291; State v. Yellotu Jacket S. M. Co., 5 Nev. 415; Barnes v. Western Union Tel. Oo., 24 Nev. 125; McGurn v. Mclnnis, 24 Nev. 370; McNamee v. Nesbitt, 24 Nev. 400; Orawford v. draw ford, 24 Nev. 410; Scott v. Haines, 4 Nev. 426.) Surely there is some evidence to support the verdict in this case.
II. The objection to the complaint, that it does not state facts sufficient to constitute a cause of action, comes too late. No demurrer was filed to the complaint, and the defendant's answer cures any defects there may have been in the complaint. The action was tried upon its merits, a verdict rendered and judgment entered on the pleadings and the evidence. If negligence, which is a conclusion of law, or the ultimate fact, had been alleged in the complaint, it would have made no difference in the evidence introduced, for all the facts and circumstances surrounding the accident which caused the injury were fully gone into at the trial. The omission of the word "negligence,'' or any allegation of negligence, in the complaint did not affect the substantial rights of the defendant. The case was tried and determined on its merits alone. Under these facts and circumstances the judgment ought not to be reversed, affected or disturbed. (McManus v. Ophir S. M. Oo., 4 Nev. 15; Lake Bigler Road v. Bedford, 3 Nev. 399; Gal. State Tel. Oo. v. Patterson, 1 Nev. 150; State v. Lady Bryan M. Go., 4 Nev. 408; Richardson v. Hoole, 13 Nev. 492; Treadway v. Wilder, 8 Nev. 91; Níccy. Miller, 57 Pac. Rep. 1086, petition for rehearing.)
III. A complaint which states facts from which negligence can be inferred is not defective for omitting the word "negligent,'' or its derivatives, and the court would have been justified in overruling a general demurrer to the complaint, had one been filed. The sufficiency of the complaint, however, was not questioned. (City of Geneva v. Burnett, 91 N. W. 275; Hirst v. Bingen Real Fstate Go., 69 S. W. 368; Scheiber v. United Tel. Go., 55 N. E. 742; Bomona Olitic Stone Co. v. Johnson, 33 N. E. 1000; Ferguson v. V. & T. JR. B. Co., 13 Nev. 190-194.)
IV. The complaint is not required to contain express averment of defendant’s negligence, but the allegation of facts showing a duty, a failure to perform it, and resulting injury, is sufficient. (Illinois Steel Co. v. OstrowsM, 62 N. E. 822.)
V. In a complaint for negligence the allegation that the defendant did the particular fact causing the damages will support all incidental facts and circumstances of omission and commission, and fairly tend to establish the negligence of the primary act. {Snyder v. Wheeling Fled. Co., 26 S. E. 733; Am. Dig. 189, part II, p. 4693 note g; Maddens. Boyal Fort B. B. Co., 35 So. C. 381.)
VI. The damages were not excessive, nor given under the influence of passion nor prejudice. The testimony shows that plaintiff is a cripple for life; that he has suffered night and day from the injury received; that prior to the accident he was a good worker and nothing lazy about him; that now he cannot work, not even cut the kindling; that even yet he walks the floor nights unable to sleep from the pain in his hand and arm, and unable either to shut or to open his right hand, or to do scarcely any kind of manual labor, which is the only kind-of labor he has ever done. This is amply shown on every page of the testimony of plaintiff and his witnesses. (Watson on Damages for Personal Injuries, p. 409, sec. 325.)
By the Court,
Talbot, J.:
In the complaint it is alleged in substance: That the plaintiff was employed by the defendant to run a mower. On July 3, 1901, the defendant requested the plaintiff to work to the machine a horse which was unknown to him, which he had never seen before, and with the habits and disposition of which he was unacquainted. "That said defendant then and there informed this plaintiff that said horse was a broken and gentle animal. That said defendant then knew that said horse was neither broken nor gentle, but that he was a wild, dangerous, and uncontrollable animal, commonly known as a 'bronco.' That plaintiff, while so emploj'ud, and at defendant's request, commenced working said team, but without any fault on his part was unable to work, manage, or control the same, and said team ran away with said machine and this plaintiff, without any fault on the part of plaintiff, throwing plaintiff therefrom violently, and in such a manner that plaintiff was greatly, seriously and permanently injured, his head and body hurt, his right leg-bruised and torn, and his right arm cut and broken, and from which injuries plaintiff has» ever since suffered great pain and anguish, his health has become broken and impaired, and his right hand and arm permanently disabled, to plaintiff's damage in the sum of ten thousand dollars." The trial resulted in a verdict and judgment for $3,000 damages, and from an order denying defendant's motion for a new trial he appeals.
The controlling question is whether the evidence is sufficient to sustain the necessary allegations of the complaint and support the verdict, and it becomes important to analyze and compare the statement of the witnesses, and to ascertain whether there is any testimony to sustain these material allegations, or rather as many of them as are essential to make the defendant liable in damages. Instead of bringing to this court a full and cumbersome transcript of the evidence containing much that has no bearing upon the points involved— a practice that is quite common — the record in this case is to be commended for giving a synopsis and close statement of the effect of the testimony of the various witnesses. When first called to the stand, the plaintiff stated that he was employed in the latter part of June, 1901, by Mrs. Anderson, to help cut the defendant's grass; that he arrived at defendant's ranch on Sunday evening, June 30th; that the next morning he went to the corral about 4 o'clock, and asked defendant if he would hook up his own team, and that he said "No," that he had plenty of his own horses; that plaintiff then said, "Say, Mr. Anderson, I won't drive any broncos or bad horses, I am getting- too old for that"; defendant replied that his horses were all gentle, and that his "old woman" could drive them; defendant gave plaintiff a good gentle team that morning, which were slow, and which he worked all that day — July 1st; that the next morning he asked defendant if he would take his own team, which defendant told him to use, and which he worked all day Tuesday; that on the morning of July 3d plaintiff asked defendant which team he would take, and defendant gave him one of the horses that he had worked Monday and another gentle horse, which he worked until noon; that after dinner he took these two gentle horses he had worked in the forenoon, and hooked them to the mower; that after 'he had them hitched, and ready to start, Fred Scott, one of defendant's men, brought him another horse already harnessed, and said defendant wanted plaintiff to work him instead of one already hooked to the mower, which was a very slow horse; that defendant asked Scott if the horse was gentle, and he replied that he did not know; that just then, and while they were talking, the defendant and his son Ben and Arthur Packard came along, and plaintiff asked defendant if the horse was gentle, and he said "Oh, yes"; that the plaintiff started to the meadow to mow grass; that when about 300 yards on the way the bronco looked back, bowed its neck, kicked and bucked, and the team ran away; that he could not hold them; that he was thrown to the ground, rendered unconscious, had his right arm cut and broken, his leg bruised, and sustained injuries from which he had ever since suffered. Surgeons and others testified that both bones of the right arm were broken above the wrist, and that the muscles and hand were disabled. On plaintiff's behalf there were also proof that, excepting the two years previous to the trial, the plaintiff had teamed for sixteen years, and was a skillful teamster; that defendant's 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 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 when, the plaintiff came with his own horses to the defendant's ranch he (the defendant) had horses of his own that he wanted to work to the mowers; that the plaintiff worked his own horses a day or two, and worked a team of defendant's in the forenoon on the 3d day of July; that on that day the defendant told the plaintiff that he wanted him to work one of his young horses with an old horse to the machine; that they had been broken to work to the wagon, and were gentle; that the plaintiff could work one of his own horses with one of defendant's young horses, or take one of defendant's old horses with a young horse; the defendant had five teams and mowers cutting his grass; that on the 3d day of July he also told the other drivers to put a young horse with an old horse to each machine, and they did so; that the team hitched up for the plaintiff was a young horse and an old horse; that when the plaintiff started the team the young horse stopped and held back, and the defendant went up to the team and said to the plaintiff that the horse was gentle, but if he was afraid to drive the team the defendant's son Ben or Packard would drive it; that his son Ben and Packard were present, and his son Ben said to the plaintiff that he would drive, or that Packard would drive, and his son offered to drive, and that the plaintiff said that he would drive them himself, and he started off with them, and had gone about 300 yards when defendant's attention was attracted by the plaintiff yelling; that the team ran back to the barnyard, where they stopped. The defendant also testified that the horse had been broken to work to the wagon at G-olconda in the spring before; that it had been worked to the wagon for two weeks before the 3d day of July; thht it was worked right along to a wagon on the ranch, after the accident, the same as his other horses, and that he never knew or heard that it tried to run away, or that it was wild or dangerous, either before or after the accident. On cross-examination the defendant testified: " That horse was never hitched to a mower before the time plaintiff tried to drive him. Neither my son, nor Packard, nor any one else tried to drive him to a mower that season after plaintiff was hurt. The 'reason was because there was no more hay to cut. It was not because he was not gentle. I don't know whether I told Roberti that my 'old woman' could drive him or not, but I have a thousand dollars to bet right now that she can drive him. I won't bet that she can drive him to a mowing machine, but I will bet she can drive him. We have never worked that horse in a mowing machine, but we have worked him in a wagon. When I 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."
The defendant was corroborated largely by the witness Packard and by his son Ben Anderson. The latter testified in part: That when plaintiff took the lines and his seat on the mower the horses started off all right, but the plaintiff pulled on the lines so hard that the young horse, having a tender mouth, stopped; that the old horse continued to pull, and a tug came loose; that the defendant then came up, and told the plaintiff that if he was afraid of the horse the defendant's son Ben would drive him; that the horse was gentle working to a wagon; that witness then said to the plaintiff that he or Packard would drive the team, and witness offered to do so, and the plaintiff said in reply that he would drive them himself; that he started, and when he had gone a few hundred yards he heard the plaintiff yelling, and saw the team come running back to the yard; that every year defendant had some young horses broken to the mower after they had became gentle in working to the wagon. lie also testified that the horse was afterwards worked in a wagon and in a machine, and has never since shown a disposition to buck or run away. On cross-examination the witness stated: "I helped break the buckskin to a wagon in February at Golconda. I never drove him to anything but a wagon. He was a big, strong, full-grown animal. We were working five mowers that day. This buckskin and gray were the only two horses left that had not been worked to the mowers. I told Roberti myself that the horse was gentle. I did so because he was so, and we wanted to get him broke to a machine." Packard testified that the buckskin horse had long legs, was fifteen or sixteen hands high, was a good runner, and may have been .seven or eight years old.
Defendant's daughter testified that at the breakfast table on the 1st day of July she heard her father tell the men that he wanted them to work one of his young horses with an old horse in order to break them to the mower, and she said that she did not think at the time of the trial that the plaintiff was much hurt.
In rebuttal the plaintiff testified that the defendant did not tell him that his son Ben or Packard would drive the team; that the son Ben did not offer to drive them, nor say that he or Packard would drive them; and that he told the defendant that he would not drive broncos; that nothing was said about the horse by the defendant, nor by defendant's son Ben, nor by Packard, in the hearing of the plaintiff, except that the defendant said the horse was gentle, and that his " old woman" could drive him.
It may be observed that the most essential parts of plaintiff's testimony are contrary to that given by witnesses for the defendant. The record indicates that Ben Anderson stated that the horse was worked to a mower after the accident, and has never since shown am1- disposition to buck or run away, in conflict with the assertion of his father that he had not been so worked since; and the testimony of defendant's daughter that she did not think at the time of the trial that the plaintiff had been seriously hurt may be considered in connection with that of the physicians and others, who testified regarding the broken arm, cut muscles, permanently disabled hand, and the nature of the injuries plaintiff sustained. In giving due consideration to the statements of the defendant and witnesses for him that the horse was gentle, we must not forget that the plaintiff, who without contradiction ^as shown to be an experienced teamster, testified that the horse was the worst he ever saw, and that another witness stated that defendant's horses had the general reputation of being a mean, bad lot. This court has repeatedly held that in case of conflict it will not set aside the verdict if there is any substantial evidence to support it, and the testimony of a larger number of witnesses to a different state of facts is no ground for reversal. (State v. Buralli, 27 Nev. 41, 71 Pac. 537.) It is also the well-established rule'that questions relating to the weight of the evidence are for the trial court, which has opportunities for observing the bearing and demeanor of the witnesses, and is better able to judge regarding the force and effect which should be given to their testimony, and the order of the district judge granting or refusing a motion for a new trial on that ground will be sustained. (Golden v. Murphy, 27 Nev. 379, 75 Pac. 625, and cases there cited.)
It 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 ascertain whether there is sufficient evidence to support the verdict and judgment. If all testimony in conflict with that favorable to the plaintiff be ignored, applying these ordinary legal principles, and the further doctrine that the plaintiff 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 lie sought to avoid. The fact that the defendant said to the men at the breakfast table on July 1st, 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 plaintiff 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 testimony this he evidently and by due care endeavored to do. He stated that he told the defendant that he would not drive any broncos or bad horses; that he offered to work his own team; that the defendant told him the horse was gentle; and he denies that the defendant or his son Ben offered to have the latter or Packard drive, or that he was told anything regarding the horse except that he was gentle, and that defendant's old woman could drive him.
Under the legal assumption, binding on this court, as indicated, that the jury relied upon plaintiff's testimony, and considering the undisputed circumstances 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 buskskin horse in place of a slow one he asked if it was gentle, that he had previously told defendant that he would not work any broncos or bad horses, a fair construction of plaintiff's testimony would have warranted the jury in concluding that plaintiff had no previous knowledge regarding this horse; that he did not know whether he had been worked to a mower; and that by defendant's 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 defendant's recommendation of the horse, under the plaintiff's testimony, would naturally apply to the work in hand, and was broad enough to include its gentleness when worked to a mower. Defendant's statements had the tendency to induce the belief that all his horses were gentle, and that this one was safe for a woman to drive.
Against this the plaintiff introduced evidence tending to show that defendant's horses had the general reputation of being a mean, bad lot, and testified that the buckskin was the worst he ever saw. The defendant, and other witnesses for him, stated that this horse had been broken to 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 a wagon there two weeks before the accident; and that at no other time since he was broken has he shown any disposition to run away, buck, or kick. Admitting this to be true, still the defendant, as a rancher experienced with such animals, must have been aware that a horse which was not broken until he was seven or eight years old, and then late in the winter, when he was likely to be in poor flesh and spirit, would, if taken up in June or July, when the grass is good, and he is fat, be liable to cause trouble when hitched to a mowing machine for the first time, instead of being gentle enough for a woman to drive.
The facts within the knowledge of the defendant azzd unknown to the plaintiff would hardly warrant such an assurazice of extreme gentleness — one which would be likely to iziduce a timid man or woznair to drive him. It is apparent that the plaintiff wished to avoid danger, and that the defend ant's remark, as testified to by the plaintiff, which gave the horse a higher recommezrdation than the circumstances kziown to the defezrdant justified, led plaintiff to assume the risk which resulted in his injuries. After a review of the pleadings and evideirce, we are not prepared to say that the action is based upon fraud or negligence. The most important allegations in the complaint are that the horse was dangerous, and that the defendant knew that 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 regarding 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. True, he states that he told the plaintiff the horse was gentle to a wagon, and that he wanted him to break him to a mower, but this the plaintiff denies. Whether the latter or the defendant and his son and hired man were right in this regard was a question for the jury, and not for this court, to determine. If the statements were made by defendant as testified by his witnesses, we do not think it probable that the plaintiff 'failed to hear them. The proximity of the parties, and the testimony of the defendant's witnesses that plaintiff made reply, indicate that he heard what is claimed to have been stated to him regarding the horse, if the remarks were made at all; and his denial raised a conflict in that part of the evidence.
The judgment and order of the district court denying the motion for a new trial are affirmed, with costs in favor of respondent.
Belknap, C. J..- I concur.