The Augusta Factory v. Barnes

• Decision Date: 28 February 1884
• Citation: 72 Ga. 217
• Parties: The Augusta Factory. vs. Barnes.
• Court: Georgia Supreme Court

72 Ga. 217

The Augusta Factory. vs. Barnes.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

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Master and Servant. Parent and Child. Damages. Negligence. Principal and Agent. Non-suit. Res gestœ. Pleadings. Evidence. Before Judge Roney. Richmond Superior Court. October Term, 1883

C. G. Barnes brought suit against the Augusta Factory to recover damages for an injury to his minor daughter, which it was alleged resulted in her death.

The evidence for the plaintiff was, in brief, as follows: Anna E. Barnes, the daughter of plaintiff, was fourteen years of age. She was employed by defendant. Cason was the second hand in the spinning room. This room was divided into sections, and Carter was in charge of one section. (At another part of the plaintiff's testimony, Carter is also called the second hand.) It was a part of his duty to give the signal for the frames to start. This is generally done by striking together two caps which are on the frame, or by striking the frame with a bobbin. There were three new frames in the room, which were in charge of two girls of the name of Sheehan. Anna Barnes was put at one of these frames to help in connection with it. When the machine was stopped for the purpose of taking off full bobbins and putting on empty ones (called " duffing"), she was engaged in cleaning some of the machinery. It was the duty of Carter to give the usual signal before starting the machinery, but he failed to do so, and the hand of Anna Barnes was caught in the gearing, and badly torn and lacerated, so as to render the amputation of one finger necessary. She did very well for a few days, and was able to go to the factory, which was close by, and to the place near by where her father was at work. She soon, however, had symptoms of convulsions and of lockjaw (tetanus), and died several weeks, after the injury from the effects of it. She only had measles a few days before her death. They had broken out and recovered before that time. The death resulted from lock-jaw, as just stated. Exposure with measles might complicate the case. She was carried home at once after the injury, and her father was sent for. On his arrival shortly afterwards, and while she was suffering from the wound, she made a statement as to how it occurred. (One or two of the witnesses speak of this statement as having been made " immediately after she was hurt." The father, who first detailed it, stated that he was sent for, and upon his arrival the statement was made to him. It was between eight and nine o\'clock a. m. Another witness testified that the accident occurred about eight o\'clock a. m.) This statement and the attendant circumstances were thus detailed by the father as a witness: " My daughter left my house about six o\'clock in the morning, and I saw her again between eight and nine o\'clock the same day. When I saw her, one of the fingers of her right hand was all cut up, and the other finger ripped up and a bruise on the top of the hand; a piece of the cog-wheel was in her hand, and she made this statement to me as soon as I saw her. She said at that time that they put her on some new frames, and that she refused to go on, and Mr. Cason, the second hand, cursed after her and told her to go to work; that this frame was different from the old frames, and she did not want to run it, but after he cursed her she went on anyhow; that they had to \'duff and stopped the machinery, and she was cleaning off; and that Mr. Carterstarted it off without giving the signal." She also stated that it was a part of her duty to clean off the gearing while the " duffing " was being done. The cause of the injury was the failure of Carter to give the signal. It was his duty to go around and overlook the frames and see that work was done. At the time of the accident, Anna Barnes did not have any frame to take care of; she was helping another girl to clean her frame. Her father had never relinquished his parental right to receive her wages. She received the pay tickets from the factory and drew the money, but paid it to him.

There was other evidence as to the value of services, etc.

The court refused a non-suit, on motion therefor.

Plaintiff further introduced testimony that, after the injury and shortly before the girl's death, she sent for Cartel and had a conversation with him, in which he admitted that he started the frame without giving the signal, but said he did not think anybody was in the frame; that he did not see her, or he would not have done it for the world. She told him she forgave him. The injury was on March 31, and she died on April 26.

The evidence for the defendant was, in brief, as follows: Cason, the second hand in the spinning room, told Anna Barnes to cut and mend the threads; she was told to allow the other girls who were running the frames to clean them off, and they also were so instructed. She had no frame of her own, but was merely a helper, and her duty ceased when the frame stopped. There was more gearing on the new frames than on the old ones, but they were not more dangerous. Cason denied that she objected to going to work on the new frame, or that he cursed or used any bad language to her, or put her in a dangerous position, and stated that when she was hurt she was not in the discharge of the duty required of her. Carter was section hand and acting second hand. He had been in the factory for fourteen years and was a careful man. He had never beenknown by the witnesses to start a frame without giving the signal. Before the accident occurred, he looked on both sides of the frame and saw the girl who was in charge of it at her place; he gave the usual signal for starting, and after a few seconds the machine was started. A loud cry was heard; he at once stopped the frame, and found Anna Barnes underneath, with her hand caught in the gearing. It was the duty of a girl in charge of a frame to clean it. If she were sick and another were put there, it would be her duty to clean it. Anna Barnes was paid by tickets issued in her own name, to be returned for settlement at the next pay day, with a deduction for the rent of the house occupied by the family. These were paid only on presentation, and she collected them herself. About eight days after the accident, she was in the factory grounds on a cold, drizzly day. She had a case of suppressed measles, which did not break out till her death. She was just reaching the age of puberty, and contracted a severe cold. Several members of the family had measles at the time of the accident. When she sent for Carter, he did not admit that he started the machinery without giving the signal, nor did she say that she forgave him, but that she did not blame him.

The jury found for the plaintiff $1,000.00. Defendant moved for a new trial, which was refused, and defendant excepted.

The grounds of error are sufficiently stated in the divisions of the decision where they are discussed; and it is only necessary to state, in connection with the sixth division, that the fourth ground of the motion was as follows:

" Because the court, when Dr. Dessaussure Ford was a witness for plaintiff, and defendant proposed, on cross-examination, to show that, at the time of his examination of the deceased child, which disclosed that she had tetanus, from which, in the opinion of witness, she never would recover, and which, under his then opinion, would prove fatal, he was not allowed to state the information givento him at the time coming from Dr. Wright, the physician attending the girl; that after her injury, she had been caught in the rain. The error alleged is that, being an expert and his opinion given as to the cause of death, the defendant was prevented from showing all the facts or statements upon which it was based or controverting the correctness of the opinion."

Frank H. Miller, for plaintiff in error.

H. D. D. Twiggs; Salem Dutcher, for defendant

Hall, Justice.

This action was brought by the plaintiff to recover compensation for loss of the services of his minor daughter, who was so seriously injured while in the employment of defendant, by the carelessness, inattention and negligence of its agent, as to occasion her death. The trial resulted in a verdict of $1,000 for the plaintiff, and a motion for a new trial was made on various grounds, and refused. The judgment refusing this new trial is here upon bill of exceptions and writ of error for review.

1. The judge instructed the jury that this was a case in which they might give exemplary or punitive damages, as a recompense for the wounded feelings of the plaintiff, and were we not well satisfied that in this finding they had allowed nothing on this account, this error in the law as charged would compel the grant of a new trial, for this is not an action in which vindictive or general damages can be given. Such only as are proved to have been sustained, such as are capable of exact computation, can be recovered. On the hearing in this court, this was conceded by the counsel for plaintiff. The amount found does not exceed the actual value of the loss proved, and as the error in the charge did not affect the verdict, it is not good ground for a new trial. 41 Ga., 675, 680. In the Central Railroad vs. De Bray, 71Ga., 406, we held that, " as nospecial damages were found by the jury, and as the verdict was such as to warrant the conclusion, that no such damages entered into the same, the defendant was not hurt by a charge on that subject."

2. Among others the defendant filed the following plea:

"It admits that on the 30th day of March, 1881, Anna Elizabeth Barnes (the plaintiff's minor daughter) was employed by it in its spinning room, and while so employed was injured, but it avers that, at the time of such injury, she was not in the discharge and performance of her lawful duty and due service, but in the violation of the instructions received from immediate superiors, and engaged in doing an act positively...