OCR Text |
Show LOWER COURT IS REVERSED IN DAMAGE CASE Tho doclalon of th lower court In tho case of Loulia B. Smith, ot al. va. tho Centennial Euroka Mining company and the Rio Grando Western Railway company, com-pany, appellants. Is rovorsed In an opinion opin-ion handed down In tho Supremo court yesterday and tho caso remanded for a new trial The action was brought by the heirs of John P. Smith to recover damages for hlB death. The complaint sot out that tho deceased was employed by tho mining company in filling ore from a chute Into cars ot the railway company at Eureka, and that whllo so employed he was killed on May 4, 1901. Tho complaint alloged that tho brakes on tho cars wero not In repair and that tho death of Smith was caused by tho ncgllgenco of tho defendants. In its answer an-swer tho railway company alleged contributory con-tributory negllgonco and that Smith's death was occasioned by tho risks incident inci-dent to his employment. Tho Jury In tho caso returned a verdict In favor of the plaintiffs againot tho railway rail-way company for $11,000, and tho defendant defend-ant appealed. Tho opinion of tho Supremo court Is delivered de-livered dv Justice Bartch and concurred In by Chlof Justice Basklu. Tho opinion holds: "The conclusion, from the ovl-denco, ovl-denco, Is Irresistible that the lamentable mlsfortuno was tho result of his own heedlessness, being directly attrlbutablo to his disobedience of tho rules and Instructions In-structions of his employer at a tlmo when, so far ua appears from tho record, thero was tho existence of no cmorgency which roqulrod hasty action. ' It la hold that In tho light of tho law the plaintiffs had no right to recover damages, and that tho court erred In refusing re-fusing to instruct tho Jury to return a verdict In favor of tho defendants. Justice McCarly writes a dissenting opinion, In which ho concurs In tho reversal, re-versal, but arrives at tho conclusion In an entirely different manner from his asBodaten. He holds that tho action is a bona fldo ono In so far as tho law Jo concerned, but that tho court erred In Instructing the Jury and that a new trial should bo granted on that score. |