108 Tenn. 251 | Tenn. | 1901
While in the employment of the American Lead Pencil Company, at its factory in Lewisburg, Tennessee, Clarence J. Davis, a boy ten years old, received such personal injuries as necessitated the amputation of his right arm. By his father, as next friend, he brought this action against the company and obtained verdict and judgment for $2,875.00 as damages.
The company prosecutes this appeal in error from that judgment, and raises several objections-to the proceedings below.
1. It was the duty of the plaintiff, in the course of his work for the defendant, to tie in bundles the penholders that dropped from each of two planers into boxes. These planing machines were near each other, and in close proximity to the pulley on which the plaintiff was caught and injured.
With a view of corroborating his own testimony as to the location and unprotected condition of these machines, the plaintiff introduced James Bearden, who testified as follows: “I worked there after Davis was hurt. I know how the planers were arranged and located while I worked there, but don’t know how it was when plaintiff was hurt. There were three machines side by side. Two were from four to six feet apart, (and) there was no protection from the belt or pulley while I was there.”
' This statement about the situation was admitted
The assignment is bad, because the objection was general, being “defendant excepted to tbe question.” Crane v. State, Ib., 86; also because testimony relating to condition soon after catastrophe, nothing else appearing, was competent as tending to show condition at that time; and, finally, because the next witness said: “Machines (were) in same place and condition when Jim Bearden worked there that they were when Davis worked there.”
If the testimony excepted to had disclosed the fact of subsequent repair of supposed defect in condition or arrangement of machinery, it would have been incompetent under the principle announced in Railroad v. Wyatt, 104 Tenn., 433. But such was not the purport of the testimony; it indicated no change in the locus in quo.
2. Again it is assigned as error that the Court charged the jury that they might allow punitive or exemplary damages if they believed, from all the facts and circumstances, that the defendant was “guilty of gross negligence,” or acted in “reckless disregard of the safety of the child.” The objection is twofold:
(1) That the instruction was unsound in law, and (2) that it was not justified by the evidence.
“Gross negligence,” which is the milder of the two expressions, is one of the terms used by the authorities in stating the general rule, that such damages are allowable in actions of tort whenever “fraud, malice, gross negligence or oppression” intervenes. Exactly those four terms are so employed in Sedgwick on the Measure of Damages (6th ed.), at page 35, and in many of our cases, including the following: Byram v. McGuire, 3 Head, 532; Dougherty v. Shaver, 1 Heis., 306; Robins v. Frazier, 5 Heis., 101; Haley v. Railroad, 7 Bax., 242; Cox v. Crumley, 5 Lea, 533; Railroad v. Guinan, 11 Lea, 103; Transportation Co. v. Smith, 16 Lea, 501; Telp. 6 Telg. Co. v. Shaw, 102 Tenn., 318; Traction Co. v. Lane, 103 Tenn., 388, 389.
Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages ; and for the greater reason is that degree of turpitude described by the stronger expression of the charge — “reckless disregard of the safety of the child” — also a ground for the allowance of such damages.
Sutherland gives support for the latter form of
That language of Sutherland was adopted by this Court in two of the cases just cited (11 Lea, 103; 103 Tenn., 389), and also in Railway v. Lee, 90 Tenn., 573, as another mode of stating some of the grounds for allowing damages of this kind.
The Supreme Court of the United States expresses the same general thought in somewhat different phraseology, not confining itself to any particular words. Day v. Woodworth, 13 How., 371; Milwaukee v. Arms, 916, S., 493; Scott v. Donald, 165 U. S., 86.
None of these authorities deny, but, on the contrary, all of them that are to the exact point, in effect, affirm that what amounts to gross negligence under the facts of the particular case, or to a disregard of the safety of the person injured, is a discretionary ground for punitive or exemplary damages; and in that affirmation they give the amplest support to the present instruction of the trial Judge.
The testimony of the plaintiff was to the effect that he, though only ten years old and inexpe
This testimony unmistakably tends to show gross negligence and recklessness on the part of the defendant, and that tendency was enough to justify the submission of the question' to the jury. “It is for the Court to determine whether the evidence tends to show facts which warrant exemplary damages; the sufficiency of the facts is for the jury.” 1 Suth., Damages (2d ed.), Sec. 403, p. 867.
So, the instruction complained of was both sound in law and justified by the evidence.
Moreover, it is clear that the jury did not allow punitive or exemplary damages. That being true, the instruction, if not correct, as it has been found to be, would be harmless and, therefore, not ground for reversal.
3. Finally, the only other assignment of error that need be mentioned is that which complains of the verdict as excessive; and this may be disposed of very briefly.
In cases of this character, actions for personal injuries, it is always the duty of the jury, in the first instance, to determine the amount of
The present verdict evinces no such vice. A fair and impartial jury might reasonably allow $2,875.00 as compensation for the pain, anguish, and dismemberment found to have been suffered by the plaintiff through the negligence of the defendant.
Affirmed.