Deiss v. Southern Pacific Co. , 56 Nev. 151 ( 1935 )

Plaintiff concedes that the deceased was negligent in undertaking to cross the railroad track. This being so, the burden of proof is upon her to show that the deceased received the shock which caused his death, at some other time. It is the theory of the plaintiff that he received it at some indefinite point more than 350 feet west of the point of collision. There is no evidence upon which to base this contention. The doctor might have been able to give expert evidence on this point, but plaintiff did not want that evidence — at least did not interrogate him as to it — though attention was directed to it. 22 C.J. p. 111.

The logical inference is that the shock was received at the time of the collision. At least, it so seems to me. The very word "shock" indicates a condition produced by a sudden incident. Deceased received no physical injury of consequence — hence his shock was due to fright — a mental condition — incident to the collision. It may be that the effect of the shock may have been more serious as the nervous strain upon the deceased was prolonged, but that is not the theory of the plaintiff, and there is not a scintilla of evidence in the record upon which to base a conclusion to that effect.

I think the case of Giannini v. Southern Pac. Co., 98 Cal. App. 126,276 P. 618, is in point.

I do not deem it necessary to consider the other points made.