Whirley v. Whiteman

• Decision Date: 31 December 1858
• Citation: 38 Tenn. 610
• Parties: DANIEL WHIRLEY v. W. S. WHITEMAN et al.
• Court: Tennessee Supreme Court

38 Tenn. 610

DANIEL WHIRLEY

v.W. S. WHITEMAN et al.

Supreme Court of Tennessee.

December Term, 1858.

FROM DAVIDSON.

This cause was tried at the May term, 1858, before Judge Baxter. The jury returned a verdict in favor of the defendants, and the plaintiff's motion for a new trial having been overruled, he appealed.

R. J. Meigs, for the plaintiff, cited Lynch v. Nurdin, 41 Eng. Con. Law 422; Dixon v. Bell, 5 Maule & Selw. 198; Neal v. Gillett, 23 Conn. 427; Trow v. Vermont C. R. R., 24 Vt. 437; Redf. on Rys. Ch. 17, sec. 2, p. 329; Hartfield v. Roper, 21 Wend. 615, and commentary on it in 22 Vt. 225; Broom's Max. 161; 2 Stark. Ev. 532; 3 Camp.; 26 Penn. 118;27 Penn. 193; Childress v. Yourie, Meig's 561-564.

Trimble, A. Ewing and McEwen, for the defendants:

Michael Vaughan, for the defendants, argued:

1. The business in which the defendants were engaged being lawful, they are held only to that degree of diligence and care, in conducting their business, or to that degree of skill in constructing their machinery, which a man of common prudence and skill would have exercised under the like circumstances.

2. In ascertaining the degree of diligence required by the defendants we must look to all the circumstances connected with the accident, the time, the place, the number of persons living in the vicinity of the mill or place of accident, the habits of the defendants as prudent and careful men, etc. One witness states, that in 1838 there was but one house near the mill of the defendants, now that portion of the town is densely populated; and that degree of care which would have enabled the defendants to run their machinery, in 1838, with safety, might, at this period, under great change of circumstances, be deemed negligence.

3. The mother of the plaintiff was guilty of gross negligence, in permitting a child of three years of age, and not capable of observing and avoiding accidents, to be in a mill which was run by dangerous and heavy machinery.

4. No recovery can be had against defendants, unless they were grossly negligent, or the injury was voluntary on their part.

5. What is reasonable skill, proper care and diligence, etc., can only be determined as a matter of fact by the jury. It is impossible to establish any general rule upon so indefinite a subject; and it is impossible to make juries, or merely practical men anywhere, determine these matters, except upon the circumstances of each particular case. Robinson v. Cone, 22 Vt. 225.

6. In the case of Hartfield v. Royer, 21 Wend. 615, the doctrine is established that when a child, even of such tender years as not to be capable of using sufficient discretion to avoid danger, is permitted to be unattended in the highway, and is there injured by a traveler, he cannot recover, either in an action of trespass or case, unless the defendants have been guilty of gross negligence.

“The true rule is, that the parent or guardian is responsible for the exercise of ordinary care and prudence, until the infant arrive at years of discretion sufficient to enable him to exercise ordinary care and prudence for himself.” Brown v. Maxwell, 6 Hill, 592.

7. The cases upon this subject, seem to have turned upon the question of prudence or negligence upon the part of the defendant, as determined or found by the jury. The case of Lynch v. Nurdin, 1 Ad. and E. N. S., 28, was decided upon the ground, that the defendant had been guilty of gross negligence; and in Robinson v. Cone, in 22 Vt. 224 (which case seems to conflict with the one above cited), the court held the following: “Here the jury have found that the plaintiff was properly suffered by his parents to attend school at the age and in the manner he did, and that the injury happened through the ordinary neglect of the defendant; or if not properly suffered to go to school, then, that the defendant was guilty of gross neglect; for the judge put the case in the alternative to the jury, and they have found a general verdict for the plaintiff.

McKinney, J., delivered the opinion of the court.

This was an action on the case, to recover damages for an injury to the person of the plaintiff, whereby he was dismembered of a limb; verdict and judgment were rendered for the defendants. The injury was received in the year 1838, when the plaintiff was an infant of but little more than three years of age; and in 1856, shortly after arriving at full age, he brought this action.

The injury occurred in this way: The defendants were owners of a paper-mill in Nashville, on Water street, on the bank of Cumberland river, the machinery of which was propelled by steam. Connected with the mill, machinery had been constructed to draw up wood from the river, on a truck. This consisted of a shaft, proceeding from the engine-room of the mill, and extending through the wall of the mill-house. On the end of this shaft, and outside of the wall, some eight or ten inches, was fixed a cog-wheel, about twenty-six inches in diameter, which was geared in another cog-wheel, for the purpose of moving the truck. The wheels revolved from ten to twenty inches from the ground, and worked upwards and outwards. They were about twenty feet from the street, in an open space, entirely exposed without any cover, guard, or enclosure whatever.

The plaintiff's mother lived on the other side of Water street, nearly opposite the paper-mill. These wheels were applied to other purposes than running the truck, and werer generally in motion. In the fall of 1838, at a time when the engineer and most of the other hands were absent at dinner, leaving the wheels running, the plaintiff was caught by them, and thrown behind the wheel next to the wall, and his right leg was crushed between the knee and ankle, so that it remained attached only by a portion of the muscle and skin, and had of necessity to be amputated.

The proof shows that the wheels might have been boxed at a very trifling expense; or an enclosure made around them, so as to have been secured against the possibility of injury to any one. The proof likewise shows that the “plaintiff and other children played about the mill almost every day.” It is proved that the defendant, Whiteman, who had the sole management of the establishment, and who was generally at the mill, was a careful, prudent man. Several of the defendant's witnesses were of the opinion that there was no necessity for boxing or enclosing the wheels; that there was no reasonable ground to apprehend danger from leaving them exposed, so near to the street, as no one could be injured by the wheels, unless in getting underneath them. It is also shown, that the neighborhood around the mill, at the time, was very sparsely populated.

The foregoing is the substance of the proof. The court instructed the jury, “That they should look to all the facts of the case; the locality and character of the machinery exposed; the manner of using it; its liability to do mischief, etc.; and ask themselves the question whether, in their opinion, a man of ordinary sense, prudence, and diligence, having a proper regard for the safety of others, would have been content to leave the machinery exposed as it was, at the place it was, without apprehension of danger therefrom.”

For the plaintiff, it is insisted, that the instruction given to the jury, was improper; and that the verdict was contrary both to the law and evidence.

It may be proper to remark at the outset, that the delay of the plaintiff, for a period of some eighteen years, to bring suit for the injury received, though a matter, if not satisfactorily accounted for, proper to be taken into consideration by the jury, in estimating the damages, can have no influence upon the question, as to his right to maintain the action. The plaintiff might have sued by prochein ami, at any time during minority; or, he might decline doing so, and bring his suit at any time within one year after arriving at age, as he elected to do.

The objection to the charge is, that it leaves the determination of the law, as well as the facts of the case, to the jury.

In trials by jury, the court is to decide questions of law, and the jury, questions of fact; what are called mixed questions, consisting of both law and fact, as questions in respect to the degree of care, skill, diligence, etc., required by law in particular cases, are to be submitted to the jury, under proper instructions from the court, as to the rules and principles of law by which they are to be governed in their determination of the case. The truth of the facts and circumstances offered in evidence, in support of the allegations on the record, must be determined by the jury. But it is for the court to decide, whether or not those facts and circumstances, if found by the jury to be true, are sufficient, in point of law, to maintain the allegations in the pleadings. And this must be done in one of two modes; either the court must inform the jury hypothetically, whether or not the facts which the evidence tends to prove, will, if established in the opinion of the jury, satisfy the allegations; or, the jury must find the facts specially, and then the court will apply the law, and pronounce whether or not the facts so found are sufficient to support the averments of the parties. 1 Stark. on Ev. 447. The principle of law by which the jury must be governed in finding a verdict, cannot be left to their arbitrary determination. The rights of parties must be decided according to the established law of the land, as declared by the Legislature, or expounded by the courts, and not according to what the jury in their own opinion, may suppose the law is, or ought to be. Otherwise, the law would be as fluctuating and uncertain as the diverse views and opinions of different juries in regard to it. In this...