Jones v. Old Dominion Cotton Mills

• Decision Date: 24 June 1886
• Citation: 82 Va. 140
• Parties: JONES, INFANT, BY, & C., v. OLD DOMINION COTTON MILLS.
• Court: Virginia Supreme Court

82 Va. 140

JONES, INFANT, BY, & C., v. OLD DOMINION COTTON MILLS.

Supreme Court of Appeals of Virginia.

June 24, 1886

Argued at Richmond but decided at Wytheville.

Error to judgment of hustings court of city of Manchester, rendered 11th February, 1884, in an action of trespass on the case wherein Robert L. Jones, an infant, suing by his next friend Thomas W. Jones, was plaintiff, and the Old Dominion Cotton Mills was defendant.

The object of the suit was to recover damages occasioned the plaintiff by the alleged negligence of the defendant's agent. There were three jury trials. The first jury returned a verdict for the plaintiff, in April, 1882, for $2,251.25 damages. This verdict was set aside and a new trial awarded by the court on the motion of the defendant, on the ground that it was contrary to the law and the evidence. The second jury, in June, 1882, returned a verdict in favor of the plaintiff for $4,500 damages. This verdict was also set aside by the court and a new trial granted on the motion of the defendant, for the like reason. To the action of the court setting aside these two verdicts, respectively, the plaintiff excepted, and filed his bills of exception, setting forth the evidence. The third jury, in February, 1884, returned a verdict for the plaintiff, and assessed his damages at $7,000, subject to the opinion of the court on the demurrer to evidence filed by the defendant. The court below, on consideration, sustained the demurrer to evidence and gave judgment for the defendant; to which judgment the plaintiff excepted, and thereupon obtained from one of the judges of this court a writ of error and supersedeas.

Opinion states the facts.

Meredith & Cocke and W. W. Cosby, for plaintiff in error.

W W. Gordon and Friend & Davis, for defendant in error.

OPINION

RICHARDSON J.

Applying the settled rule that " by demurring to the evidence the demurrant waives all evidence on his part that conflicts with that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that may be fairly deduced from the evidence, and refers it to the court to deduce the fair inferences from the evidence," as laid down by this court in Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 637, we proceed to state and examine the following facts of the case:

On the 28th of October, 1880, and for some years before, the defendant company was the owner of a cotton mill in Manchester, and in the fall of 1879, by its agent, Alexander Thomas, first boss of the weaving department, employed the plaintiff, then a boy of twelve years, " to sweep the floor, carry water and fill the buckets with quills." At the time of his employment, and on the day the injury complained of was received, the weaving department consisted of three rooms, all under the general management of the first boss, Thomas. In each of these rooms was a second boss, or overseer, their general duties being to see that the hands in their rooms were not idle, and to repair and keep in order the machinery running in their respective rooms; yet on occasions their power was more extended--that is to say, when a second boss of one room came for a legitimate purpose into another room and found the second boss of that room, and also the first boss, absent, it was expected of him in such absence to put in order any machinery then needing repairs, and on such occasions he would be in authority in that room.

The two rooms in this weaving department, necessary now to be spoken of, were on the third and fourth floors of the mill, respectively. In the room on the third floor one Waymack was second boss, and in the room on the fourth floor one Eastwood was second boss, his room being immediately over that of Waymack. In Waymack's room, near the ceiling, ran iron rods, commonly called lines of shafting, on which were iron wheels, called pulleys. The motive power which ran the looms in both Waymack's and Eastwood's rooms was derived from the same said lines of shafting--that is, the looms in Waymack's room were run by leather belts running from pulleys on said shafting down to other pulleys on the looms in that room; and the looms in Eastwood's room were run by belts running from certain pulleys on said shafting up through the floor of his room to pulleys on the looms of his room.

Besides the female operatives working the looms, it was necessary, in order to run the weaving department properly, to have in the three rooms composing that department, seven male hands--that is, the first boss, and in each room a second boss and helper, or boy, like the plaintiff. On the 28th day of October, 1880, the day of the injury complained of, it was attempted to run that department with not more than four such hands--that is, with Waymack, one second boss, absent, with the helper, or boy, in Eastwood's room, absent, and with Phillips, second boss in the third room, absent. Waymack had been granted leave of absence to visit the agricultural fair. So, on the day of the accident, Thomas, first boss, had not only to perform his regular duties of superintending all these rooms, but had also to act as second boss in two rooms--one on the first, and the other on the third floor. A more fitting occasion could seldom arise for Eastwood's authority to be more extended than usual. He was the only second boss on hand to assist the first boss, Thomas.

The accident occurred thus: One of the belts, which ran a loom in Eastwood's room, broke and fell down into Waymack's room through the hole in the floor. As was his duty, Eastwood went down into Waymack's room to get his belt; he pushed it up, went back to his own room, dropped the end of it through the hole in the floor, ran a chisel across the hole and let the belt hang down suspended across the chisel. As was necessary, he then again went down into Waymack's room to fasten the two ends of the belt together. He picked up a step-ladder near the door of entrance to Waymack's room and went on with it towards the middle of the room, where he had to fix the belt. When within thirty or forty feet of the place, he saw Thomas, first boss, go out of the room. It did not occur to him to call Thomas, and it is doubtful whether Thomas, owing to the great noise of the looms in motion, could have heard the call had it been made. When he got to the belt, Eastwood put the step-ladder down, put one end of the swinging belt over its pulley, riveted together its ends, and called the plaintiff to come to him. After a few unimportant words with plaintiff, Eastwood ordered plaintiff to " stand on this step," meaning the second step of the ladder and hold up the swinging belt whilst he, Eastwood, went up stairs and flattened the rivet. He left plaintiff standing on said second step. It was necessary to have some one to hold up the belt in order to keep it from wrapping around the shafting and doing damage. The step-ladder was " a shackling one" ; it was placed just under the line of shafting, on which was the pulley on which Eastwood's belt ran. Four looms were about the base of the ladder, two on each side of it. The four belts on these looms ran obliquely up to this same line of shafting. Two of the belts that ran across the front of the ladder, converged more and more closely together until they reached the pulley on which they both ran. The other two belts that ran across the back of the ladder, converged in the same way until they reached the pulley on which they ran. The two pulleys on which these four belts ran were about two feet apart, and between them was the pulley on which Eastwood's belt ran. The four belts thus converging would, of course, bring them all closer to a person the higher he was up the ladder. The plaintiff's position, on the second step of the ladder, brought his arms in close proximity to two of the converging belts, for he was ordered to stand on the ladder and hold the swinging belt wide apart, so that the side over the pulley would not wrap over it. The position in which the plaintiff was placed was one of extreme danger, especially for a boy of thirteen years, with no experience and no warning of the danger. The danger to this boy, holding one belt likely to jerk him into the shafting and surrounded by four converging belts, was increased by the fact that the belts were not laced together with a strip of leather, but were riveted with metal hooks, which increased the danger of his being caught in the belts.

When Eastwood went back to his room to fasten the rivet, before drawing the belt up, he had scarcely reached it when he heard a heavy thud against the floor, and dust flew in his face. Fearing an accident had happened, he ran back to Waymack's room and found plaintiff caught up in this iron shafting with three belts wrapped around him and two girls pulling on his hanging feet, to keep him from further injury. Eastwood partly stopped the machinery, cut away the belts and took plaintiff down. It was found that having been violently jerked up against the floor and wrapt about the revolving pulleys, he was greatly bruised and injured, and his right arm horribly lacerated--all the muscles and sinews of the under part of the arm torn and destroyed. The arm was not amputated, but was rendered permanently useless.

The plaintiff, when employed, had been placed in Waymack's room, but was not given orders to obey Waymack only. On several prior occasions he had done work for Eastwood at his command. On the day of the accident he was working as helper in both rooms, in the absence of the regular helper in Eastwood's room. When he was ordered by Eastwood to help about the belt, neither Thomas nor Waymack was present. Eastwood had repaired machinery in Waymack's room that morning. On other occasions, when Waymack was absent Eastwood...