Cotton Mill Products Co. v. Oliver

• Decision Date: 11 March 1929
• Docket Number: 27414
• Court: Mississippi Supreme Court
• Parties: COTTON MILL PRODUCTS CO. v. OLIVER. [*]

121 So. 111

153 Miss. 362

COTTON MILL PRODUCTS CO. v. OLIVER. ^[*]

No. 27414

Supreme Court of Mississippi

March 11, 1929

Division A

1. MASTER AND SERVANT. Employer's negligence in not furnishing suitable appliances to oil spinning frame held for jury.

In action by employee against employer for injuries sustained while employee was oiling spinning frame in cotton mill question, whether employer was negligent in failing to furnish suitable oil cans and in failing to make safe the place where employee was required to work, in that spinning frame employee was required to oil was not kept equipped with device known as oil spout, held for jury.

2. TRIAL. In action for injuries sustained while oiling machinery, where jury viewed scene, refusal to permit employer to give practical demonstration of proper method of oiling held not error.

In action by employee against employer for injuries sustained by employee while oiling machinery, where jury repaired to mill to view scene, refusal to permit employer to give practical demonstration at mill of proper method of oiling machinery held not error, where proof showed that employee performing duty some five thousand times a day had been able to do so without serious mishap until occasion of injury.

3 DAMAGES. Twelve thousand five hundred dollars to man thirty-four years old for loss of one eye and impairment of other eye held not excessive.

Twelve thousand five hundred dollars to man thirty-four years of age, earning two dollars per day, for injury necessitating removal of eye and causing intense and continuous pain for thirty hours from time of accident to time of removal of eye and also materially affecting the other eye held not excessive.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

Action by A. L. Oliver against the Cotton Mill Products Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Bratton, Bratton & Dailey and Holmes & Holmes, for appellant.

The legal principle is too well established to admit of argument that appellant was not required to furnish the newest, safest, and best machinery, appliances, and places for work, but that its obligation was met when it furnished such as were reasonably safe and suitable for the purposes in view, or when it furnished such as were in ordinary and common use by others in the same business. "The master is not required to furnish the newest, safest, and best machinery, appliances and place for work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view." 39 C. J. 329. The principle that a master has met the requirement when he furnishes appliances and places of work of a kind in general use by businesses of like kind is recognized by this court in the following cases: Jones v. Y. & M. V. R. R. Co., 90 Miss. 547; Kent v. R. R. Co., 77 Miss. 494; Hatter v. I. C. R. R. Co., 69 Miss. 642. We submit with confidence that the evidence in this case is undisputed that it was not usual or customary or a matter of general use for well-regulated cotton mills to equip the Howard & Bulloch frames with the tube or oil spout at the foot end thereof where the pulley is attached to the foot end of the frame.

The only other alleged ground of negligence upon which the appellee stands is that the appellant failed to furnish the appellee with an oil can with a spout sufficiently long to perform his duties as oiler. The proof conclusively demonstrates without a shadow of doubt that oil cans of the character identified in evidence as having an eight or nine-inch spout were provided by appellant in the spinning room for the use of the appellee. The state of the record, therefore, justifies this court in saying beyond doubt that the appellant provided oil cans of the kind that appellee stated he could have used with perfect safety even in the exercise of ordinary care.

The trial court erred in refusing to permit appellant to demonstrate manner of oiling spinning frame. We recognize the fact that it was a matter of discretion on the part of the trial judge to permit, or not to permit, the view by the jury. We submit, however, that the matter of demonstrating the manner in which the spinning frame in question could be oiled with an oil can in the absence of the oil spout, was a matter of evidence, which was either competent, or incompetent. If this was competent evidence in the court room, then it was competent on the occasion of the jury's visit to the mill, since the court had already exercised its discretion to permit the jury to visit the mill, and on such visit the court was organized and in session at the scene. It was not a matter of discretion with the court, therefore, to admit or reject this competent evidence. It was vital to the appellant's contention to show to the jury the manner in which the spinning frame in question was required to be oiled by it. The best and most direct proof of this issue was to show the actual oiling of the machine in the manner in which the appellant required it to be oiled. As stated above, had a life size model of the spinning frame been actually produced in court, and evidence offered to show how the appellant required the same to be oiled, there can be no doubt about the fact that the competency of such evidence would have been recognized, and the trial court would have admitted it. If it was admissible in the court room, then it was admissible on the scene, after the court had exercised its discretion to permit the jury to visit the scene, since on the occasion of such visit the court was there organized and in session.

Even though it be contended that it was a matter which addressed itself to the discretion of the court, we respectfully submit that under the circumstances of this case the failure of the court to permit it was an abuse of its discretion. The jury, drawn in the ordinary way, from all walks of life, unacquainted with machinery, were permitted to go into the spinning room of the cotton mill where belts and pulleys were revolving about them on all sides, amidst the noise and confusion of running machinery. Such was calculated to impress them with dangers incident to work about machinery which are not felt to exist by those who are familiar and experienced with machinery. In taking the jury to this scene, and in the midst of all of this machinery, it was particularly vital to the contention of appellant that they have the opportunity to actually view the oiling of the frame in operation in order that they might see the freedom of danger therefrom, and in order that they might not conjecture imaginary dangers incident thereto.

The verdict is grossly excessive. The proof shows that the appellee is a man thirty-four years of age, and was earning at the time of his injury two dollars per day. We have a young man of about the age of thirty-four years who was earning the wages of an ordinary laborer, viz., two dollars per day, who has lost his right eye, and who suffered extreme pain for a few days following the injury, with no reasonably certain evidence in the record that the vision of the left eye will be permanently affected. He was awarded a verdict for twelve thousand five hundred dollars which, if invested, at the usual rate of interest of six per cent per annum would net him seven hundred fifty dollars per year for the remainder of his life, and would leave his principal still intact. In other words, the amount awarded by the jury if invested as aforesaid, will net him one hundred fifty dollars more per year than he was earning at the time of his injury, and will still leave his principal intact. Before discussing the elements of damage which the jury were justified in taking into consideration, it might be well to eliminate those things which are not elements of damage, but which, judging from the size of the verdict and the nature of the case, the jury took into consideration:

First. Disfigurement occasioned by the loss of appellee's eye is not an element of damage which the jury were justified in taking into consideration. By reference to the record wherein counsel for appellee refers to the bloody socket of appellee's eye, it might be well assumed that throughout the trial and argument of this case the bias and prejudice of the jury were inflamed by this disfigurement of the appellee. Second. The probability of defective vision in the left eye can likewise not be considered an element of damage in the absence of proof thereof with reasonable certainty. I. C. Ry. Co. v. Williams, 144 Miss. 804, 110 So. 510. Third. Neither can appellee's damages be estimated by considering what one individual or another would take for his eye, yet it may not be amiss to say that in the argument in this case before the jury such a measure of damages was prescribed for the jury. Such measure, however, is wholly erroneous. Heddles v. Chicago, etc., Ry. Co., 74 Wis. 239, 42 N.W. 237.

From a standpoint of common sense we know that the earning capacity of a common laborer could not be materially reduced by the loss of an eye in the absence of any showing that the other eye was materially affected thereby. Certainly, it could not be said that the earning capacity of this appellee who was earning the wages of a common laborer was reduced by the loss of his eye more than thirty-three and one-third per cent. He was earning at the time of his injury not exceeding six hundred dollars per year, and if thirty-five hundred dollars were awarded him to compensate him for the loss of his earning capacity, such an amount invested at the usual rate of six per cent per annum would net him two hundred ten dollars per year for the remainder of his life and leave his principal intact, and this...