Roberti v. Anderson

• Decision Date: 31 March 1904
• Docket Number: 1,650.
• Citation: 76 P. 30,27 Nev. 396
• Parties: ROBERTI v. ANDERSON.
• Court: Nevada Supreme Court

76 P. 30

27 Nev. 396

ROBERTI v. ANDERSON.

No. 1,650.

Supreme Court of Nevada

March 31, 1904

Appeal from District Court, Humboldt County.

Action by Peter Roberti against J. P. Anderson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fitzgerald J., dissenting.

M. S Bonnifield, for appellant.

Frank X. Murphy, for respondent.

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 employed, 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 compose 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 about the wrist, and that the muscles and hand were disabled. On plaintiff's behalf there was 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 buckskin 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 Golconda in the spring before; that it had been worked to the wagon for two weeks before the 3d day of July; that 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. He 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 this 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...