Powell v. Nevada, California & Oregon Railway

By the Court, Belknap, C. J.: Appellant, a railway corporation, had a steam whistle on its shops six feet from the line of the street along which respondent was driving. His horse took fright at the sounding of the whistle and ran away. Respondent was thrown out and injured. In an action to recover damages for the injuries a judgment was rendered for the sum of six thousand dollars. An [62] appeal was taken therefrom and from an order denying a motion for a new trial upon the ground, among others, of excessive damages appearing to have been given under the influence of passion or prejudice and of insufficiency of the evidence. The complaint prays for a judgment of $10,089.50. Of this sum $5,000 is asked as damages for mental and physical suffering; $5,000 for permanent partial loss and impairment of memory and permanent loss of the use of the right arm, and the remainder ($89.50) for medical attendance, nursing, and similar expenses incurred. In an endeavor to analyze the verdict and determine the amount the jury may have ascertained as damages for mental and physical suffering and the amount for permanent injuries appellant claims there was no material mental anguish or physical pain shown and no permanent injuries, and that the verdict and judgment are excessive. The evidence upon the part of respondent tended to show that he, accompanied by Mr. Smith, was driving a horse of ordinary gentleness, attached to a road cart, along Fourth street in the city of Reno, upon the occasion stated; that upon approaching appellant’s railway shops the steam whistle, which witness for plaintiff testified was of unusual shrillness, was blown, the horse became frightened and, suddenly turning, upset the cart, throwing the men out and injuring respondent. His fall caused a concussion of the brain and an atrophic condition of the muscles of the right arm. His mental faculties, which were fairly good before the accident, became 'impaired. He was dull, forgetful, appeared distracted, and, in the language of one of his witnesses, "his condition was pitiful.” Testimony on the part of appellant tended to minimize his injuries. It may be conceded that there are passages in the testimony of respondent himself that can be construed against a recovery, but upon the whole case we think the judgment should not be interfered with. The evidence touching mental anguish and physical suffering is not as satisfactory as that concerning permanent injuries. But in this class of cases there is no fixed rule for the measure of damages, especially for mental anguish apart from physical [63] suffering. Much is left to the jury under proper instructions from the court. The amount of the judgment is not so excessive as to indicate passion or prejudice on the part of the jury, and the evidence is sufficient to support the verdict. J. R. Eason, a witness introduced by respondent, was permitted to testify that on another occasion appellant’s whistle had frightened a team which he was driving on Fourth street, and caused it to run away. ■ The admission of this testimony is assigned as error, on the ground that it tended to introduce collateral issues, and thus mislead the jury from the matter directly in controversy. The evidence was introduced to show the dangerous character of the whistle at the place it was used. In Dist. of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, in a suit to recover damages from a fall caused by a defective sidewalk, it was held competent to show other like accidents whilst it was in the same condition. The court said: "They were proved simply as circumstances which, with other evidence, tended to show the dangerous condition of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character; at least, it is some evidence to that effect. * * * Here the character of the place was one of the subjects of inquiry to which attention was called by the nature of the action and the pleadings, and the defendant should have been prepared to show its real character in the face of any proof bearing on that subject.” In Golden v. C., R. & Pac. Ry. Co., 84 Mo. App. 59, defendant, after repairing its bridge, left a pile of boards on the side of the.highway. It frightened plaintiff’s horses, and they ran away and injured her. Evidence was admitted that gentle horses had been frightened by the same pile of boards at the same place. The court said: "The evidence was offered to show the character of the object of complaint, and was not to try collateral matter. If leaving an object in the highway which is calculated to frighten horses is a wrong, and the question is made whether such object is so calculated, what better evidence can be had of that than actual [64] experiment?’ The great weight of .authority favors the ruling of the trial court.” Evidence of this nature is not new in this State. In Longabaugh v. V. & T. R. R. Co., 9 Nev. 271, in a suit against a railroad company for damages occasioned by setting fire to cord wood by one of its locomotives, it was held that previous fires in the same place caused by coals dropping from defendant’s locomotive, and also of the emission at the same place of sparks of sufficient size to' set fire to cord wood, was admissible. Exception was taken to the exclusion of the answer to the question addressed to Mr. Myers, the master mechanic of appellant, as to whether it was necessary and convenient for the appellant corporation to sound the whistle at stated hours for the purpose of notifying the employees in the shops to commence and quit work. The question was inadmissible. The subject was of common knowledge and experience, and it was for the jury, and not for the witness, to determine whether the whistle was convenient and necessary. Appellant is incorporated under the general laws providing for the incorporation of railroad companies. (Section 971, et seq., Cutting’s Compilation.) Among its powers are: "Tenth— To erect and maintain all necessary and convenient buildings, stations, depots, and fixtures and machinery for the accommodation and use of their passengers, freight, and business and to obtain and hold the lands and other property necessary therefor.” (Section 988.) It is claimed that this provision protects appellant in the use of the whistle. A similar defense was made in Knight v. Goodyear Co., 38 Conn. 442, 9 Am. Rep. 406. The court said: "Their right to use a whistle must be conceded, but, like all other rights, it must be so exercised as not to endanger and injure others. It is no answer to say that they did not erect or blow the whistle for any such purpose, or that they had no knowledge that it frightened horses, or that they did not suppose it was calculated to frighten them. These facts, if they existed, they were bound to know or anticipate. When a man exercises a particular right in a particular manner calculated to produce injury to another, he must be held to a knowledge [65] of the possible or probable consequences of his act, and cannot be excused because he did not intend or expect those consequences. It is an elementary rule that every man must be presumed to intend the natural and necessary consequences of his acts, and there is nothing found in this case which will exempt the defendants from the operation of that rule.” We have examined the remaining exceptions, and find no error in them. The judgment and order denying a motion for a new trial should be affirmed. It is so ordered.