Burch v. Southern Pac. Co.

Decision Date01 October 1909
Docket Number1,830.
Citation104 P. 225,32 Nev. 75
PartiesBURCH v. SOUTHERN PAC. CO.
CourtNevada Supreme Court

Appeal from District Court, Humboldt County.

Action by Robert M. Burch against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Guy V Shoup and E. M. Bagley, for appellant. H. R. MacMillan and H H. Henderson, for respondent.

SWEENEY J.

This is an action instituted March 24, 1905, in the district court of the Fifth judicial district, in and for the county of Humboldt, for the recovery of $26,700 damages for personal injuries sustained by plaintiff while in the employ of the defendant in its railroad yards at Winnemucca, Nev., as a yard switchman, on October 26, 1903, at which time plaintiff sustained injuries necessitating the amputation of his left leg three inches above the knee and three toes of his right foot. The trial of the cause before a jury at Winnemucca on December 23, 1907, resulted in a verdict for the plaintiff for $20,000 damages. A motion for a new trial was demanded and denied, and from the order denying the motion for a new trial defendant appeals on many grounds, which we will hereinafter consider.

Plaintiff contends that, while attempting to board the front end of a caboose backing toward him, he was struck by a defective switch stand, and knocked from the step of the caboose under the wheels. The defendant denies that plaintiff was knocked off the caboose by coming in contact with the switch stand and contends that he did not hit the switch stand until after falling from the caboose, which he attempted to board, thereby relieving the defendant of any responsibility, by reason of the accident being caused by the plaintiff's fault and negligence. In order to maintain this action plaintiff alleged, first, that he was in the employ of the defendant as a switchman in its Winnemucca railroad yards; second, that he was injured in the course of his employment by a defective switch stand in the yard; third, that the defendant was notified of, and had promised to repair, the defect in the switch stand; fourth, that plaintiff, relying on the promise of the defendant to repair the defective switch stand, continued in the employ of the defendant; fifth, that the defendant did not keep its promise to repair; and, sixth, that the defect in the switch stand was the proximate cause of his injuries. The defendant admitted that plaintiff was in its employ as a yard switchman at the time of the accident, but denied that he was injured by a defective switch stand, or that there was any defective switch stand in its yards; denied any promise to repair; denied that plaintiff had suffered any injuries due to the negligence of the defendant; alleged that the rules of the company required all employés to report to the superintendent any defect in the construction of the yard tracks whereby any accident might happen to the employés, and further alleged that the proximate cause of the plaintiff's injuries was his failure to secure a firm handhold on the caboose while the caboose was in motion, and thereby lost his balance, was thrown under, and run over by, the wheels of the caboose. The issues being thus made, the parties went to trial, and after a warmly contested suit upon many interesting and important points of law and fact, raised and ably pressed and resisted by counsel on both sides, and a mass of conflicting testimony for and against the issues as contended for, the jury arrived at a verdict in favor of the plaintiff.

As to the important issues of fact submitted to the jury on which the liability of the defendant was established, this court, after a careful examination of the testimony adduced, is of the opinion that there is sufficient substantial evidence in the record to support the verdict of the jury, and, in harmony with the well-settled rule established in this court in the recent case of Murphy v. Southern Pacific Company, 31 Nev. --, 101 P. 322, and many other cases, that where there is a substantial conflict of testimony upon any material issue, the verdict will not be set aside, we prefer to follow rather, than to establish, a new rule. The evidence touching on the material and vital points involved we will consider later, and during the course of the opinion, and will proceed to consider and pass upon the errors assigned and relied on by counsel for the defendant in the order in which they have presented them.

1. Appellant assigns as its first error that the court erred in denying the challenge of defendant to Juror Nofsinger, upon the ground that the examination disclosed a frame of mind wherein the juror said that the crippled condition of the plaintiff created in his mind a feeling that would cause him to lean towards the plaintiff and against the defendant. This challenge was made under subdivision 7 of section 164 of our Civil Practice Act (Comp. Laws, § 3259). That section provides: "Challenges for cause may be taken on one or more of the following grounds: *** (7) The existence of a state of mind in the juror evincing enmity against or bias to or against either party." In the light of this ground for challenge, let us examine the testimony of Juror Nofsinger on his voir dire, and see if he so disqualified himself as to bring himself within the pale of a disqualified juror: "Q. Have you reached any opinion that concerns the merits of the case that would take evidence to remove it? A. No, sir. Q. You are entirely unbiased and unprejudiced? A. Yes, sir. Q. Are you acquainted with Mr. Burch? A. I am not. Q. Well, are you acquainted with Mr. Burney? A. Whom? Q. Mr. Burney? A. No, sir. Q. Are you acquainted with Mr. Kitto? A. Yes, sir. *** Q. Do you know of any reason why you should not sit on this jury? A. No, sir; I do not know of any. *** Q. You know the defendant is a corporation? A. Yes, sir. Q. Have you any prejudice at all against corporations in general? A. No, sir. Q. Have you any prejudice or feeling against the Southern Pacific, this defendant, for any cause? A. No, sir. Q. If taken as a juror, would the Southern Pacific stand equally as well with you as the plaintiff, who is an individual? A. I think so. Q. Then you are conscious of no feeling or prejudice that would cause you to lean against the defendant if taken as a juror? A. No, sir. Q. Would the fact that the plaintiff to this action lost his leg, and his foot was injured, create any sympathy in your mind that would lead you to lean towards him and against the company at the trial of this case? A. It might. Q. It might? A. Yes, sir. Q. You naturally have a sympathy for a man in this condition? A. Yes, sir. Q. And you feel that that sympathy would influence your mind in case you were taken as a juror? A. Well, I don't think it would. Q. You don't think it would? A. No, sir. Q. Of course we would like to know. A. It would. Q. What say? A. It would. Q. It would? A. Yes, sir. Q. You could not then entirely disabuse your mind of that fact? A. No, sir. Q. You would go into that box with a feeling of sympathy and friendliness towards the plaintiff owing to his condition that would influence your mind in making up your verdict, if you were taken as a juror? A. Yes, sir. Q. Are you firmly convinced of that, that you are settled in your opinion? A. Well, no, sir; I am not. I could not say that I am firmly convinced, but I believe it would. Q. Still you have in your mind that feeling now? A. Yes, sir. Q. Strong enough, is it, you are as to that impression? A. Yes, sir. Q. That your sympathy for his condition would influence you in this matter in case you are taken as a juror? A. Yes, sir; it would. Q. Then I would take it, in a measure, and the way that is, that you would lean against the defendant owing to his unfortunate condition? A. I don't know as it would be exactly against the defendant; it perhaps would--yes, sir. Q. It would be against the defendant and in favor of the plaintiff? A. Yes, sir. Q. You feel conscious in that, do you? A. I do. Judge Mack: We challenge the juror for cause under the seventh subdivision of the section we read yesterday. Mr. Henderson: I would like to ask one question. Supposing the evidence in this case would show that the plaintiff himself was negligent, and that the company was not to blame at all, would you say that that sympathy for the plaintiff would overdo what the evidence showed? A. I don't know whether it would or not. Q. You think you would be guided entirely by the evidence? A. Yes, sir. Q. And you could a true and just verdict render according to the evidence? A. Yes, sir. Q. And if the evidence should be against the plaintiff, you could bring in a verdict for the defendant? A. Yes, sir. Q. Now, if you were called as a juror in this case, would you put aside that feeling of sympathy, and try it upon the evidence, and the instructions of the court? A. I would. Q. And render your verdict accordingly? A. Yes, sir. Mr. Henderson: We deny the challenge. The Court: The challenge is on the ground that there is a prejudice already existing? Judge Mack: Prejudice towards one and in favor of the other. The Court: (Q.) You think, Mr. Nofsinger, that the plaintiff in this case is considerably injured, and crippled for life; do you think that would have any influence over you in rendering your verdict? A. I don't think it would. The Court: Challenge denied."

A careful study of the questions propounded and answers given by the juror, which, it is alleged, disqualifies him, read in connection with the entire examination, which should always be done before passing upon the qualification of a juror leads us to the conclusion that the juror was not disqualified. It is apparent to us that what the juror was trying to express, as indicated by his answers, as influencing the mind of the juror...

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