P. Lor1llard Co. Inc v. Clay

• Decision Date: 16 September 1920
• Citation: 104 S.E. 384
• Parties: P. LOR1LLARD CO., Inc. v. CLAY.
• Court: Virginia Supreme Court

104 S.E. 384

P. LOR1LLARD CO., Inc.

v.CLAY.

Supreme Court of Appeals of Virginia.

Sept. 16, 1920.

Error to Law and Equity Court of City of Richmond.

Action by Bryan Clay against P. Lorillard Company, Incorporated. Judgment for plaintiff, and defendant brings error. Amended and affirmed.

S. S. P. Patteson and McGuire, Riely, Bryan & Eggleston, all of Richmond, for plaintiff in error.

Hunsdon Cary, of Richmond, for defendant in error.

BURKS, J. Bryan Clay recovered a judgment against P. Lorillard Company, Incorporated, for $15,000 for the loss of an eye, alleged to have been caused by the negligence of the company while he was in its employment as a servant. This judgment the company seeks to have reversed.

Formerly a plaintiff in error stood in this court in the position of a demurrant to the evidence, but this has been changed. Now, in stating a case in this court which has been tried by a jury, it must be stated as the jury may have viewed it, remembering always that the jury are the sole judges of the weight to be given to the testimony of the witnesses, and also bearing in mind the weight attached to the verdict of a jury which has received the approval of the trialjudge. Code, § 6365; Roach v. Southern R. Co., 114 Va. 440, 76 S. E. 953, and cases cited.

Thus viewing the testimony, the case at bar is stated as follows: Bryan Clay was reared in the mountains of North Carolina, knew nothing whatever about machinery, and had never been employed elsewhere than on the farm on which he was reared. The P. Lorillard Company, Incorporated, was engaged in the manufacture of cigars, in the city of Richmond, and occupied a large factory five stories high, well tilled with machinery suitable for its business; the third story being used for a machine shop, and the fifth, in which the injury was sustained, being used for stripping or steaming the tobacco. On this floor there were 250 machines for stripping tobacco. Clay, who was 20 years of age, entered the employment of the company as an apprentice on December 29, 1916. For about two months and a half he was employed simply to oil ma chinery. After that he was given other em ployment, but several months before the injury complained of he was put in charge of about 50 stripping machines on the fifth floor. His business here was chiefly to look after the machines under his control and keep them running, though he was directed to assist any other workman on that floor who might call on him for assistance. On October 16, 1917, Edwards, a fellow workman, was attempting to drill a hole in an iron or steel door frame of one of the machines, and called upon Clay to sight the drill for him to see if it was perpendicular. The drill was being operated by Edwards about three feet above the floor, when Clay came up near the drill and leaned over to get his eyes on a level with the drill, and attempted to hold a bushing in place with a screwdriver while he sighted the drill and the hole was being drilled. The drill slipped and struck something, which caused it to break, and a piece of the drill flew off and struck Clay in one eye, causing an injury which necessitated the removal of the eyeball. The drill used was a portable electric drill, weighing 27 1/2 pounds, and the bit was a quarter of an inch bit. The drill was made to carry any bit from zero up to a half inch, and there was some evidence that it was not safe to use so small a bit as a quarter of an inch in a drill of that weight, though the preponderance of the evidence was to the contrary. Other drills of lighter weight were available to Edwards, but he was permitted to exercise his own judgment as to what drill to use. It was a common occurrence for bits to break, but there is no evidence that Edwards knew that fact, or that any had ever previously broken on the fifth floor where he worked, or that he had ever seen one break. He had never sighted a drill but once before, and that was for his foreman on that floor, though he had seen other people sight drills. He testifies that he had never been in any other machine shop than the Lorillard Company, and had never had any other employer, and that no instructions or warning was ever given him about the use of machine tools. So far as deemed necessary, other evidence in the case will be stated in the course of the opinion.

The injury complained of was inflicted October 18, 1917. The declaration containing two counts was filed in August, 1918, and the plaintiff was allowed to amend his declaration by adding a third count on March 14, 1919. The amendment consisted in charging an additional ground of negligence on the part of the defendant, to wit, that the drill was out of repair and was too heavy to use with a one-fourth inch bit, which resulted in the injury complained of. Objection was made in several forms that the amendment stated a new cause of action which was barred by the statute of limitations. It is very clear that the amendment does not state a new cause of action. In the language of Whittle, J., in Wise Terminal Co. v. McCormick, 107 Va. 376, 378, 58 S. E. 584, 585:

"The amended declaration merely charges the negligence complained of in a varying form to meet different phases of the evidence."

If there had been a judgment on the original declaration, it could have been pleaded in bar of the ground of action set up in the amendment, and this is a sufficient test of the character of the amendment. In New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300, which has been consistently followed in this court, it is said:

"If an amended declaration assert rights or claims arising out of the same transaction, act, agreement, or obligation as that upon which the original declaration is founded, it will not be regarded as for a new cause of action, however great may be the difference in the form of liability asserted in the two declarations."

See, also, Seal v. Portland Cement Co., 108 Va. 806, 62 S. E. 795; Bowman v. First National Bank, 115 Va. 463, 80 S. E. 95; Standard Paint Co. v. Victor, 120 Va. 595, 91 S. E. 752; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70, and cases cited; Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; and numerous citations in Burks' Pl. & Pr. p. 402, note 14.

The refusal of the trial court to permit the plea of the statute of limitations to the third count of the declaration to be filed because not offered in time is also assigned as error. Our view of the discretion vested in the trial court in such case is sufficiently expressed in Thacker v. Hubard, 122 Va. 379, 94 S. E. 929, but no harm could have come to the defendant by the rejection of its plea, because, as just pointed out, the amendmentof the declaration did not make a new case, and the cause of action was not barred at the time the original action was instituted.

It is assigned as error that the trial court refused to order a view of the scene of the accident. Views are authorized by section G013 of the Code (section 3167, Code of 18S7) "when it shall appear to the court that such view is necessary to a just decision." The motion for a view is addressed to the sound discretion of the trial court, and its ruling refusing a view will not be reversed unless it appears from the record that a view was necessary to a just decision. In the case at bar the record does not disclose any such necessity. It simply appears that the motion was made and was overruled because "the accident happened some 18 months prior, when conditions may have been different." This is far from making it "appear to the court that such view is necessary to a just decision." It is stated in the petition for the writ of error that its counsel "desired the jury to have an opportunity to see this floor and observe for themselves whether there was any vibration with all the machinery in motion"; in other words, they were thus to take further evidence upon a subject upon which there was a conflict of testimony. It has been held by this court that the view of the grounds at the scene of an accident which is the basis of an action may better enable the jury to apply the testimony disclosed upon the trial, but does not authorize them to base their verdict on such view, nor to become silent witnesses to facts which were not testified to in court. Kimball v. Friend, 95 Va. 125, 27 S. B. 901. In Cutchin v. Roanoke, 113 Va. 452, 477, 74 S. E. 403, 409, it is said:

"The view of a jury, in any case, is of indeterminate probative value, and should be resorted to only where there is reasonable certainty that it will give the jury substantial aid in reaching a right verdict."

In Abernathy v. Emporia Mfg. Co., 122 Va. 406, 424, 95 S. E. 418, 423, it is said:

"The question of the propriety of ordering a view lies largely in the discretion of the trial court, which should only grant it when it is reasonably certain that it will be of substantial aid to the jury in reaching a correct verdict and whose decision will not be reversed unless the record shows that a view was necessary to a just decision."

In Scott v. Doughty, 124 Va. 358, 368, 97 S. E. 802, 805, it is said:

"The trial court refused to grant the view because it was of the opinion 'that the jury could not ascertain'"ordinary" low-water mark by one view; and also the result, if not the express object, of the view would be to supply evidence rather than to apprehend it.' There was no error in this ruling. It was a matter resting in the sound discretion of the trial court and in this case the discretion was well exercised."

In 1 Greenleaf on Ev. (16th Ed., by Wig-more) pp. 33, 34, it is said:

"While, as already pointed out, autoptid proference is to be distinguished from evidence both testimonial and circumstantial in the strict sense of the word, it is at any rate an additional source of belief or proof over and above the statements of witnesses and circumstantial evidence. Its significance in this respect has often been discussed by courts in ruling upon...