Hochschultz v. Potosi Zinc Co.

Per Curiam: This is an action brought by respondent against appelant to recover damages for personal injury in the sum of $50,000. The case was tried by a jury and a verdict returned in favor of - the plaintiff (respondent herein) in the sum of $9,500, and judgment entered accordingly. From the judgment the defendant has appealed. At the time the cause of action arose appellant was engaged in the operation of a mine in that part of Lincoln County, now Clark County, known as the Potosi zinc mine. For a period of some seven months prior to the accident which occasioned respondent’s injuries, the respondent had been in the employ of the appellant as a "mucker,” and was so employed when the accident occurred. On the morning of the accident the night shift were alleged to have left a "missed hole” in what is termed the "short drift.” Through the accidental explosion of said missed hole, respondent received the injuries which formed the basis of the action. The record on appeal contains sixty assignments of error, twenty-seven of which relate either to the giving [200] of instructions to the jury or to the refusal or modification of requested instructions. With the exception of the assignment that the court erred in overruling a motion for a nonsuit at the conclusion of plaintiff’s evidence, all the other assignments relate to rulings of the court upon objections to the admissibility of testimony. The appellant is not in position to take advantage of error, if any there was, in the order denying the motion for a nonsuit. The defendant did not stand on the motion, but offered testimony in defense of the action and thereby waived the motion for a nonsuit. (McCafferty v. Flinn, 82 Nev. 269; City v. Lewis, 34 Wash. 413, 75 Pac. 982; Reno Brewing Co. v. Packard, 31 Nev. 443; Power v. Stocking, 26 Mont. 478, 68 Pac. 857.) If, as a matter of fact, the plaintiff had failed to make out a sufficient case for the jury by not standing on the motion for a nonsuit, the only way the sufficiency of the evidence could be tested would be by motion for a new trial upon the ground of such insufficiency, in which event the point would be determined upon the entire evidence — that for the defendant as well as that for the plaintiff. (Authorities, supra.) The sufficiency of the evidence as a whole is not before us for consideration. The following is the only exception’taken to the instructions: "At this time the defense desires to note a special exception to each instruction given to the jury at the request of the plaintiff, to each instruction given to the jury by the court of its own motion and without request, and to each instruction requested by the defendant and refused.” That an exception of this character is not sufficient under the provisions of our statute to authorize a review of the same has been too frequently decided to require extended comment. This may well be called a blanket exception, without any point or points whatever stated. The reasons for holding such an exception as of no effect are fully covered by the opinion of this court in McGurn v. McInnis, 24 Nev. 370, and other authorities therein cited. Hence further comment is unnecessary. See, also, Paul v. Cragnaz, 25 Nev. 311, 47 L. R. A. 540; [201] Schwartz v. Stock, 26 Nev. 150; Schlitz Co. v. Grimmon, 28 Nev. 252; Tonopah L. Co. v. Riley, 30 Nev. 321 Many of the assignments of error as to the rulings of the court on the admission or exclusion of testimony are without any proper exception, but in such instances it is manifest from a casual reading that no prejudicial error occurred in such rulings. Excluding a number of assignments where manifestly prejudicial error could not have occurred, we proceed to consider those which have required some investigation to determine. Plaintiff was asked upon cross-examination if his uncle did not state in the presence of an officer of the defendant corporation that the plaintiff was a miner. Conceding that the sustaining of the objection to this question was error, we are unable to see wherein it could have prejudiced the defendant. Plaintiff testified that he had never said that he was a miner, but, on the contrary, told the mine superintendent that he was not. A witness for the defendant testified that the uncle of defendant in defendant’s presence did so state to the superintendent of the mine that the plaintiff was a miner, and that the plaintiff nodded his assent. Plaintiff testified that, when he went to work at the mine, he told the superintendent that he was not a miner, and the latter told him he would show him how to work. The books of the defendant company, offered in evidence, showed that the plaintiff was given miner’s wages to begin with, but that after six days’ work his employment was changed to that of mucker, with the reduced pay of a mucker, and that he continued at that wages until the time of the accident. In the testimony of W. E. Smith, a witness for the defendant and the superintendent in charge of the mine, occurs the following question and answer: "Q. What, if anything, occurred with regard to John’s appointment as a miner on the sixth day of his employment? A. He set his shots off about half an hour before the time with the rest of the men inside of the mine.” Upon motion of counsel for the plaintiff this answer was stricken out. Counsel for the defendant did not attempt to point out [202] to the court the materiality of this answer, but it is contended in the brief on appeal that it was for the purpose of showing why the defendant was changed from the employment of a miner to that of a mucker. The ruling of the court certainly did not prevent counsel for defendant asking the witness the direct question — why the plaintiff was changed in his employment — and showing such reasons as actuated the defendant in making the change. Error is assigned in the ruling of the court sustaining plaintiff’s objection to the question asked the same witness: "Q. State, if you know, how many accidents have occurred at the Potosí mine during that period?” The period covered was three years. We are unable to see any error in this ruling. Defendant was permitted to show, and did show, that missed shots occurred frequently in the mine. Accidents from some other cause are not of any importance in this case. We have not been able to find anything in the record that would justify a reversal of this case. A number of points, which have been elaborately argued, were not presented in such shape that they could be considered, for the reason before stated — that no proper exception was raised in the lower court. The judgment is affirmed.