Murphy v. Southern Pac. Co.

CourtSupreme Court of Nevada
Citation101 P. 322,31 Nev. 120
Docket Number1,760.
Decision Date19 April 1909

101 P. 322

31 Nev. 120


No. 1,760.

Supreme Court of Nevada

April 19, 1909

Appeal from District Court, Washoe County.

Action by James Murphy against the Southern Pacific Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. [101 P. 324]

Mack & Shoup, for appellant.

Lee J. Davis and S. S. Downer, for respondent.


This is an action instituted by plaintiff to recover $10,000 damages, $155 hospital and medical expenses, and $1.50 for surgical apparatus, claimed to be due plaintiff for certain injuries sustained while a passenger on one of defendant's trains on a railroad operated by defendant, December 22, 1906, at a place called "Harney," in the county of Eureka, state of Nevada.

It appears undisputed from the evidence that plaintiff was a passenger upon defendant's train, being provided with a ticket, and that he received an injury as the result of a wreck on said line of road, being occasioned by a head-on collision between the passenger train upon which the plaintiff was traveling and a freight train going in the opposite direction. The action was tried before a jury, which resulted in a verdict in favor of plaintiff for $7,500, and defendant appeals to this court from the judgment entered upon the verdict, and from the order denying defendant's motion for a new trial, basing said appeal upon the following grounds: (1) Excessive damages appearing to have been given under the influence of passion or prejudice; (2) insufficiency of the evidence to justify the verdict, and that it was against law; (3) errors in law occurring at the trial and excepted to by the defendant; and (4) newly discovered evidence, material for the defendant, which could not with reasonable diligence be discovered and produced at the trial. The grounds thus assigned will be treated in the order in which they are stated.

Subdivision 5 of section 195 of our civil practice act (Laws 1869, p. 226, c. 112 [Comp. Laws, § 3290]), which states the grounds upon which a new trial will be granted to a party claiming to be aggrieved, and which is seriously contended by appellant to warrant a new trial in the present case, reads: "Excessive damages appearing to have been given under the influence of passion or prejudice."

It has been admitted and conceded by the defendant that plaintiff was injured while a passenger on one of defendant's trains, and entitled to recover some damages. The admission of this primary liability made by appellant is complete. It is contended, however, by the defendant that plaintiff is entitled only to recover such damages as are the natural and proximate consequence of the injuries sustained by the collision. Defendant contends that the only injury sustained by plaintiff as the result of the collision was an inconsequential bruise upon his left leg, which, with ordinary care and attention, would have healed without any appreciable injury to the plaintiff; and that the varicose veins, from which plaintiff is suffering, were brought on by septic poisoning that resulted from plaintiff's lack of care in the interim between the time of the accident and the time of trial. A further contention was made at the time of the trial that the plaintiff was suffering from varicose veins previous to the time of the accident, and, hence, that they were not the result thereof. The plaintiff as strenuously maintains that the varicose veins and injury, of which he is now suffering, resulted directly from the bruise or contusion received at the time of the collision, and were not caused by any act or omission of his own not directly attributable to the negligence of the defendant, and that prior to the accident plaintiff never suffered or was afflicted with varicose veins.

The law is so well settled that no damage can be recovered in suits of this character, where the damages are not the natural or proximate consequence of any injury sustained, that it needs no citation of authorities. We thoroughly agree with appellant that the damages which plaintiff is entitled to recover must be due to the natural and proximate consequence of the negligence of defendant, and that plaintiff cannot recover upon testimony adduced, based upon mere surmise, conjecture, or possibility. Puckhaber v. Southern Pacific, 132 Cal. 365, 64 P. 480; Welsh v. Erie Railway Company, 181 Pa. 461, 37 A. 513; Philadelphia v. Schertle, 97 Pa. 450; Stringert v. Ross Townsite, 179 Pa. 614, 36 A. 345; Grant v. Pennsylvania, etc., R. R. Co., 133 N.Y. 657, 31 N.E. 220; Hannigan v. Lehigh, etc., R. R. Co., 157 N.Y. 244, 51 N.E. 992; Orth v. St. Paul, etc., R. R. Co., 47 Minn. 384, 50 N.W. 363; Wheelan v. Chicago, etc., Ry. Co., 85 Iowa, 167, 52 N.W. 119; Atchison, etc., R. R. Co. v. Aderhold, 58 Kan. 293, 49 P. 83; Koslowski v. Thayer, 66 Minn. 150, 68 N.W. 973; Hughes v. Cincinnati, etc., R. R. Co., 91 Ky. 531, 16 S.W. 275; Illinois Central R. R. Co. v. Cathy, 70 Miss, 332, 12 So. 253; Clare v. New York, etc., R. R. Co., 167 Mass. 39, 44 N.E. 1054; Illinois Central R. R. Co. v. Jones (Miss.) 16 So. 300; Plefka v. Knapp, etc., Co., 145 Mo. 316, 46 S.W. 974; Louisville, etc., R. R. Co. v. McGary's Adm'r, 104 Ky. 509, 47 S.W. 440; Wintuska v. Louisville, etc., R. R. Co., 20 S.W. 819, 14 Ky. Law Rep. 579; [101 P. 325] Pleasants v. Fant, 22 Wall. (U. S.) 116, 22 L.Ed. 780.

The law is also well established that a railroad acting in the capacity of a common carrier of passengers is bound to use the utmost care and diligence for the safety of the passengers, and is liable for any injury to a passenger occasioned by the slightest negligence against which human prudence and foresight should have guarded. In the present case, the fact that there was a collision of two of defendant's trains establishes a presumption of negligence on the part of defendant in the operation of its trains, which presumption was not rebutted or overcome by any evidence on the part of defendant, and defendant must concede, as it frankly does, its liability for any injuries sustained by plaintiff directly resulting from the collision. We thoroughly agree with counsel for appellant that the burden of proof in establishing the nature and extent of the injury resulting from the collision, as alleged by plaintiff, rested upon the plaintiff.

With these principles of law in mind, the question presented resolves itself into a question of fact, as to whether or not the injuries, alleged by plaintiff, were the direct or natural and proximate consequence of the accident at the time of the collision, and, if so, whether the verdict of $7,500 damages, which was granted to plaintiff by the jury, can be considered excessive, and to have been given under the influence of passion or prejudice. Thompson, in his Commentaries on the Law of Negligence, vol. 1, § 154, very aptly sets forth the law applicable to the foregoing observation, and which is particularly appropriate to the facts in the present case, as follows: "Whether a particular disease is the result of a particular physical injury must, of course, be determined by the jury as a question of fact, where the evidence tends to show that the disease followed the injury, and where there is expert testimony tending to show that the disease is one which might have been produced by the injury. It was so held with respect to an injury which was shortly afterwards followed by a cancer on the part of the body of the plaintiff which had been injured. So, if a physical injury, the result of negligence, leaves the constitution of the injured person in a broken and shattered condition, creating an increased susceptibility to a particular disease, and that disease follows, although after a considerable lapse of time, and death results from it, the person or corporation inflicting the injury may be liable if, in the opinion of the jury, the injury, and the sickness and debility following it, concurred in and contributed to the attack of the particular disease which finally carried the injured person off."

It has been settled by numerous decisions of this court that, where there is a susbtantial conflict of testimony upon any material issue, the appellate court will not set aside the verdict of a jury.

1. A very careful examination of the testimony adduced at the trial leads us to the conclusion that there was sufficient material evidence produced for the jury on which to have based their verdict. It appears from the testimony that plaintiff is a miner and prospector by occupation, 49 years of age, and at the time of the accident was on his way from Butte City, Mont., to Goldfield, Nev.; that he had a rugged constitution, and was a strong and healthy man; that up to the time of the accident he had been engaged in mining for 32 or 33 years in California, Arizona, New Mexico, Idaho, Montana, and Old Mexico. On the day of the accdient, in company with J. H. Cooper, he was seated in the smoking car of defendant's west-bound train, four or five seats from the front end, on the left-hand side, Mr. Cooper being seated on the opposite side of the car. Near Palisade defendant's train collided with a freight train at a siding. The force of the collision threw plaintiff against the seat in front of him, causing a contusion on his leg "which knocked the skin off of it; some places you could see the blood through it, and in other places kind of watery looking." An attempt was made by defendant to prove that plaintiff had suffered from varicose veins before the accident; but plaintiff proved by many witnesses, who had known him for many years, had slept with him, worked with him, gone in swimming with him, and observed him for long periods of time, that he was not afflicted with varicose veins prior to the time of this accident. In addition to this, Dr. Robinson, who treated the plaintiff, examined him minutely on many occasions, and performed an operation on the...

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