149 P. 188 | Nev. | 1915
On July 21, 1913, the defendant, being desirous of enlarging a station on the 1300-foot level of its mine at Tonopah, sent the plaintiff, an experienced machine man, to the place, with instructions to do certain work. He drilled all of that day, and just before going off shift fired the holes. The next day he was set to work 25 or 30 feet from where he had worked on the 21st, and after drilling one hole and about a couple of inches of another a rock slid down and injured him. He was taken to the surface, where he received "first-aid treatment” from a doctor who, he alleges, rendered the services at the request of the defendant. Plaintiff protested against this doctor treating him, but finally submitted, after which he left the mine. The next day he employed another doctor, who then discovered that the arm was infected.
Plaintiff brought suit in the Second judicial district court, in and for Washoe County, to recover damages for his alleged injuries. The complaint stated two causes of action; the first being for injuries received in the mine for alleged negligence of defendant for failure to provide a reasonably safe place in which to work, and the second for alleged negligence in furnishing plaintiff an unskilled and negligent doctor to give him "first-aid treatment.” The answer denied all the allegations of negligence, and pleaded assumed risk and contributory negligence on the part of plaintiff, to which there was a reply. There was a trial before a jury, which brought in a verdict for the plaintiff. Judgment was rendered on the verdict, and defendant appeals.
While plaintiff’s instruction No. 1- may be a correct statement of the law, it is so worded that it might have been confusing to the jury. In the rush incident to a jury trial the court is prone to accept instructions prepared by attorneys when they are substantially correct. The matter covered by this instruction should have been stated in such a way as to leave no doubt as to its effect upon the jury.
Instruction No. 8 is not subject to the objection made.
In the opinion of this court, instruction No. 13 should not have been given. The evidence does not show that the timbering was done in the manner in which it was for the purpose of saving money. While it may have been economical to put in the timbers in the manner in which they were, testimony to that effect is very far from saying that they were put in as they were because it was cheaper to do it in that manner. There was no evidence upon which to base the instruction.
*11 "You are further instructed that, if the jury believe from the evidence that any witness has wilfully sworn falsely on this trial as to any matter or thing material to the issues in this case, then the jury are at liberty to disregard his entire testimony, except in so far as it has been corroborated by other credible evidence, or by facts or circumstances proved on the trial.”
We recommend it as one safe to follow. See Williams v. State, 9 Okl. Cr. 206, 131 Pac. 183.
Appellant urges that the court erred in not giving its requested instruction No. 2. This requested instruction is based upon the theory that plaintiff was engaged in making a dangerous place safe. There is nothing in the evidence to justify such an instruction.
Defendant’s requested instruction No. 5 was properly refused, for the reason that there was no evidence upon which to base it.
The case of State v. Gayhart, 26 Nev. 278, 68 Pac. 113, is not in point on the motion to retax. The point decided in that case was that an acceptance of service of subpena was of the same legal effect as service by an officer.
It appearing that prejudicial error was committed by the trial court, it is ordered that the case be reversed, and a new trial granted.
Petition for rehearing denied.