Arnall Mills v. Smallwood

57 Dis- judgment reversed, and the naturally unavoid- followed the infection afford the commis- is directed to trict Court hut is not natural hut, if the infection ably ; findings, perfect opportunity to his sioner by reasonable extraordinary, if it could reconsider the ease. and then to avoided, death care have injury. com- considered indus- maritime found that tho missioner disability, but injury caused the trial death, with- contributing cause only a finding is Tho explanation. any further conclusion just as consistent SMALLWOOD. ARNALL MILLS v. miscon- Lee’s was caused infection No. 7020. came as that it neglect his wound duct and commissioner, and unavoidably. The about Appeals, Fifth Circuit Court of Circuit. his facts, and court, is find such not the Dec. evidence, are conclusions, supported Benson, 285 U. S. v. Crowell final. L. 285, Ed. 598. follows S. Ct. suf- findings specific and be must be his faet support the award. law ficient 282 U. States, S. v. United Florida deficient L. Ed. 291. Ct. mentioned. particular tho here in assigned error is further There disability pay awarded commissioner tho injury date of commence on the ments to Section davs afterwards. of seven instead “No 906) provides: (33 § act USCA first allowed for compensation shall bo disability, the ben except days of the seven chap 907 of this provided for in section efits however, That in case Provided, ter: for disability injury of more than results ty-nine days, compensation shall disability.” Sec from the date lowed relates act (33 § USCA only. thought be Tho medical treatment be that for provision hind this seems to support employee disabled week the means, if he his himself from own forty-nine days, for than has to do this more make it upon resources would the drain industry tho to contribute proper for forty-nine A beginning. within death protraction of days is not to disability. compensation A separate provided section 9 of the act the death is (33 909), the first item of § USCA death, bur expenses. With funeral support ceases. employee’s den of language consider the of section Whether we assigned 6 or we 'do the reason disability which is think that terminated days beyond forty-nine death within lasts Joy Gorle Alfred E. the death. In present N. E. 908. Y. N. compensation is case no allowable for the days disability. first seven negli grounds of 131 S. E. 126. To those gence only the evidence are the attention original peti The parties directed. negligent here that the loom was stick picker ly in bad condition in that to side was from side which throws the shuttle line, causing the warped, crooked, and out of trial, ap> During the out. on the loom peared picker that the sticks petition fault, and the question were not at dissenting. Judge, Circuit HUTCHESON, picker, allege fault in was amended which actuates leather steel instrument box on shuttle, and that operated was left side which the and out of worn and loose it, disclosed inspection would have an negligence. inspect repair failure to appellee at The court own premises for her permittee on the most not an invitee on business ends and liability there be no company, so that premises for the mere bad ap- Atlanta, Ga., for Greene, of Harry L. causing only conduct machinery, but pellant. she danger to done continued after her or Carrollton, Ga., Holderness, Sidney there, called “ac was known to be sometimes ap Atlanta, Ga., for Clarke, of and J. Caleb Mallory negligence.” Pearson v. S. S. tive pellee. A.) Rawlins v. (C. 278 F. Co. C. SIBLEY, HUTCH- BRYAN, Before Pickren, App. 261, 164 S. E. 45 Ga. Judges. Lawley, ESON, App. Circuit 33 Ga. Central of Ga. R. Co. v. Judge. SIBLEY, Circuit a verdict escape the direction of To girl year old em appellee, a fifteen negligence,” against her for want of “active folding cutting and by appellant in its ployed allege again that there she amended to her assisted in off hours sometimes room, inspection repair desiring room, to learn weaving father in being morning, the left-hand shuttle occupied, shut While to be weaver. alignment, and that it had been found out by operated escaped from the loom by improperly putting cardboard be- fixed sought eye. com She father and out her frame, both of and the loom tween the box Georgia Workmen’s pensation being liable to be thrown iron, the cardboard 167, as box would (Laws p. that the Compensation Law out or to be mashed so again, been an would misdirect amended), held not to have come out of line but was soon* law, shuttle, and cause it otherwise under the course of apprentice or neg alleging alleged the it did. also at common law out as She then sued and her warned of its She and that she ligence, true, and recovered a verdict. weaving condition., The evidence that she was in showed father testified knowledge the consent not infre- tha-t shuttles come out looms room with fly out, superintendent. usually do not quently, but of the overseer and guard tes them. Sev- together president by a which arrests checked denied may being weavers, things cause men- no-more eral wished tified alignment or looseness of a want of wish women weavers. tioned specially did not barrels, di- which, gun like conflict the shuttle boxes was no substantial Otherwise sticking up testimony regarding the occurrence. rect the a bolt screw may deflect a broken thread Georgia, the issues are con which law in In trials at roughness filling warp, pleadings. Recov to those fined may trip it, neg the shuttle which ery on the carried grounds can be had harness which Railway some defect in the controls alleged. Augusta & Electric ligence faulty starting warp, or a threads of Weekly, 384, 52 S. E. for the said loom. One witness Jackson, 34 the Life Insurance Co. v. Atlanta causes. This loom sev- there were a hundred 378; Citizens’ Bank App. 555, 130 S. E. injury began shoot before 713, eral El. Mill v. Valdosta & dence, reason automatically, itself a awry, sufficient spindle stopping Although the testimony. disregarding fixer discovered do. may support inference card circumstances the left box was line -of unimpeached, tightened fact, the a if it is liner under end and shown board uncontradieted, tes and reasonable bring as it in line. is bolt down so the circumstances this is a which consistent with tified without contradiction exist, find align does not no lawful the fact usual, accepted, and effectual Pennsyl perfectly ing after- can be made of its existence. The loom ran boxes. Chamberlain, 333, R. stopped it vania Co. 288 U. S. afternoon, till in the when v. wards Ap 819; Con filling 391, it broke. 53 S. Ct. 77 L. Ed. Winn v. thread in because pellee’s (C. A.) 65 F. Corporation solidated Coach C. father rethreaded Georgia 256; & loom, (2d) Frazier Railroad right-hand box v. and started 996; Banking 807, returning the left- 108 S. E. shuttle Ga. 33 when the warp Blount, 39 through threads Ins. Co. jumped Penn Mutual Life v. hand box guard, Hill, 32 App. 429, 147 768; v. loom, center of the Ga. S. E. Neill about the struck appellee. E. the issue escaped 382, under it strike She 123 30. On Ga. S. mo say nothing appeared negligence by pleadings, her father as made ought loom, that he started it for to have been matter with the directed verdict not up properly, granted. but that the shuttle should wrong'. something was come out unless have charge Exception taken to the of the was afterwards course intro as “Evidence has been court follows: un which remained traced thread tending by duced in this ease overseer, and an The loom broken. wholly in offending show that the testify re that the shuttle other weaver defendant, that control and care examined, carefully noth placed, else with it no one had meddled bad with not be ing found ordinarily occurrence was such would not as out of line; come loose or that the loom was happen negligence without on the part again any adjustment re started without or owner or custodian of the instrument and that perfectly afterwards. pair, and The un happened accident could have if such such eomtradieted, unimpeached, incredible good repair. loom had These are cir these three witnesses demands a along you may which cumstances consider finding nothing there was with evidence in the case and if the other alignment its the box or and that was not you by preponderance find the evidence morning. left in a state that If it that the manner of the occurrence arid as to had become so are circumstances of such character through up so work pass your judgment would in an authorize infer midway across afterwards loom, ence the occurrence could not have taken frequently op drive it into the have failed to place diligence by if due had been exercised posite may have box. been im you defendant, would be authorized to filling placed its properly such though make an inference are not jerked or some have may required pleaded so law.” The do case may have loom deilect fallen into the ipsa loquitur, was not one of res such as is may an unaccountable or there part quoted described in the first accident; but it cannot have been charge, may, the plaintiff because he unaligned untrue leged a loose negligence just does not know his caused Their testi speak if these witnesses true. explanation injury, put the burden on the reasonable, candid, clear, and un mony is v. defendant. Blanton Great Atlantic & Pac by other circum opposed witnesses A.) (C. 61 F.(2d) ific Tea Co. C. 427. The it. alleged irreconcilable know pleader stances which here assumed to by any Though the modes impeached known defects in the are not the existence be particular cannot disre Their evidence those of course be to the law. defects could they,are employees garded just evidence, established circumstantial Chesapeake & Martin, opened Ohio R. Co. v. mill. ease cannot be inferences of other 453, 214, 51 S. Ct. L. Ed. defects than those 283 S. 75 U. Banking Wall, Georgia principle ipsa loquitur. King & R. Co. v. res Ga. v. Davis, App. E. Western & Atlantic 7 S. R. D. C. 296 F. 987- Co. Beason, Bottling 37 S. E. 863. See Atlanta Coca-Cola Em 989. Danneman, App. 43, or other of a ployment relationship witness Bridges, on the may App. 798, his Theatre v. credi Bonita Though weighing against ending E. bility opposing qnot- in its evi- in the machine. “There say so, calculated back charge it is ed does they no reason cause that, if I know of a shut- impression give jury the taken tle to out if start could not thought the occurrence good (Ree. operating p. was in condition.” place been exercised diligence had if due “I np properly. plain- they might defendant, operating years, so have been a loom negligence irrespective whether the tiff, at the flew out and struck pe- time that shuttle alleged in the amended inferred my daughter operating properly. allegations evi- I was or other If other' tition. again go jury, There no carelessness whatever on dence the ease should part.” (Ree. 35.) be omit- would best ambiguous an instruction ted. He further testified that are lots rigid in that hold and holts the loom it case re- reversed and the judgment is steady; more or less in that there is vibration incon- proceedings not for further manded operation, causing loose; screws to come opinion. with this sistent fixer duty it was of the loom to constant- ly keep proper shape. notice in and loom Judge (dissent- HUTCHESON, Circuit 47) (Ree. Plaintiff’s other witnesses Haile ing). (Rec. thing,1 and Salter said the same interesting those cases of This is another shape it “That if was in is not it abounds, judges, pre- where law in which the possible as happen happened for a result to and highly trained sumably possessing 58.) daughter.” (Rec. parts to “If these in reason- minds, abstract thoughtful trained (speaking the loom that have there problems principles and ing, versed evidence) a loom are in proper offered in to how knowing a scientific in proof, shape, thing fly possible it is not for this to fact, fact with evidence, relate to evaluate into, 37.) out (Ree. the aisle.” from inferences correct and how to draw testimony fully corroborated Defendant’s differing irreconcilably them, themselves plaintiff, that of the shuttle could not is evidence whether there upon question possibly if have come out as it did it on reason- of a ease which plaintiff’s operated, unless box was out a verdict. minds could-base able alignment something wrong or there was with District Finding myself in with the accord operating Every mechanism of to take Judge was evidence that there operations witness testified that with the jury, ease to great loom were with deal of attended a vi- unreasonable, I they is not found verdict bration; in time screws would work supporting refer- down, make to set bold loose, the worn box would tend to become plaintiff’s proof record, what ences to side, more on one would tend to the source of to and out amounted to and, generally, become that it worn, was nec- major- the error of the believe to be what I essary supervision to have and re- constant proof ity. plaintiff’s the record as This is going witnesses, pair Lyle, of their on. One makes out. it weaver, a testified: working minor, while with the Appellee, a got not to he boxes have loose. “Shuttle of, consent, and an invitee knowledge and talking the four them I am about since weaver, had assisting father, her a appellant, rigid, perfectly straight this has by shuttle, escaping eye which, a put out got straight right into the other shoot box. loom, flew out struck her with from the slightest to whether the deviation would great know, She did nor violence. miss, well, thing cause that them warned, if out that, the shuttle box eame my duty It are worse than others. anything went alignment or tight are see whether the screws not. The adjustment operation precise its successful them. supposed fixer to watch loom might fly Plaintiff out. required, said, “There are hun TMs is the witness who a got- her father had proved by loom things more which would dred different shuttle to come out and this cause a morning; fix that he had ten out aisle,” fly into the but that fixer, attention of the loom literally was not meant taken is shown called following: “As to what by the statement would be duty keep the repair; was to looms in it whose can that, screws come the main cause of nuts loose and repaired, he that, it had been had started line, can loose and out out come of or give loose, drop, let come der, the nuts one day; run it for the balance of upit coming the reason for nuts At to case. loose, them broke, just before accident the thread look after them you constantly keep have to tight, automatically stopped, the loom due to the vibration machine. If tightened up order kept and in they are done; pulled that he went hardly come out. I have never ever seen won’t back,through the eye of the 51.) (Rec. shut- fly out.” faulty gave positive opinion it as then he a few right for all will work (Ree. the shuttle to out. throw caused swerve sudden would 89-93.) duty to loom fixer’s thing's is the out. Ih see about fixed; go around and them keep Benton, in The loom testified (Itec. it.” of Caston contradiction to satisfactory if the box was was not out if the testified He any- would not do the shut- possible throw order, it would be and, corroboration in start- but come improper operation either tle out Lyle, for a while then they that it would run will it; that stopping it or something suddenly pop out, if there was perfect they perfect if gotten signal “They wrong: “Having quickly. shape loom too pick morning 8 :30 like weaver at that. right then, or not do will aren’t fix, up and it ran something is was out started order or is either out of It banged little while and then slammed for it picking arrangement across a few times and once hit off. (Ree. 66). fall out.” protection stopped that was Caston, witnesses, two main Defendant’s right stopped there. After it it an- Benton, fixer, swore thing if other time to see it would do the same faulty alignment, was no positively that while and the same and little did all, or with nothing wrong with the at way, something wrong knew that was and I the acci- mechanism; that after part of its (Rec. 103.) with it.” wrong. They nothing swore dent found way And and this the thing, then he fixed is only have caused that which could the fixed it: “1 went down to he testified he must Small- the shuttle to come out the other end the loom and I the shut- faulty operation of loom. Gaston the wood’s against upper the rod testimony very strong regard, the box that time this thorough I the saw would run a and most shuttle little testifying he made a that had true, got straight I knew it wasn’t loom, I that he found examination of edge straight edge I taken the and ran nothing and my lay connected with which it on until it came (Ree. 77, to the end of that out the shuttle. cause it to throw got when it testimony and wouldn’t touch 81-82 His in fact com- got away didn’t touch it at all until it every possible pletely eliminated defect I the back in the box. at a cause of loosened set screw trouble in the mechanism as the back of the box which it is that it him take back to flying shuttle out as drove contradicting got thin position directly pieces fastened little Smallwood’s prop- put pieces got operated machine cardboard and I in until I that testimony that he not, majority erly, putting him, as the stat- box back to' where it would come out flush testimony my straight edge, got I that ed, position of a witness whose a there slid I that it was unimpeaehed, is but of clean across knew uneontradieted right. testimony, way adjust- if is to witness whose Smallwood I followed standard ing part believed, patently page only untrue. On loom. It way is (Rec. have learned.” 102, 103.) I ever Caston said: being “It could out without that box he come examination made at Gaston’s alignment. injury, He could have failed after the direction he testified to see- against ing starting and that push the shuttle Caston the loom running be pos- while, threw it out. As to whether it would and that after that he commenced looking sible out in for a if any- around to see could he something being thing loose; only without out of or- thing did ho found only der, that was he didn’t was bolt holds one loose end right”; upit and examined court start protection rod; stand which holds (Rec. my opinion he “As to on testified: however, bolt, nothing had to do with shuttle to what caused this I think it guiding propelling the shuttle or up. was the That tho operation it did not affect and that faulty operation.” was there were because two other bolts tight, part anyway, which were contradiction, In addition to this Caston off, had been clean that rod have flatly contradicted both the father shuttle. affected the daughter daughter the issue of and the on 10-9) that, (page Ho further being Finally, testified be- the mill with his consent. raised, flag indicating trouble he fore the he was bound do sustain his loom; in the nothing wrong pasteboard not have did that there was pasteboard necessary he out sufficiently to throw the get up, and that was the shuttle wanted it lined out at the girl, time it struek the sufficiently he had to it in line. “It had means all the throw it out time. off, been and that was before, lined and was quarrel I no have with the authorities the doing what I was when I went to it. I do not majority They recognize cite. that contradic pasteboard dropped know whether tions, inconsistencies, pre and incredibilities out; pasteboard.” I did not see vent the I of the rule invoked. say so, directly, his testi- think the While did not case on this is ruled our mony Caston, case, was to the as that Sargent, same effect Mutual Life Ins. Co. 51 F. nothing wrong (2d) 4, 6, as there was with the ma- and the cited in authorities speaking chine, only possible generally, cause of the shuttle case one in coming faulty operation. which, out must have been under the ipsa the res doctrine, it say was for the whether majority opinion stated Smallwood the machine employees, loom fix- three of defendant’s operated properly, and therefore it must er, the another weaver testified order, have been out of or that of Caston and injury, that, after the shuttle was re- Benton that order, the machine was in nothing placed, carefully examined, must operated improper therefore found with it. ly, is true. This was to be determined majority is, think, mistaken in stat- ordinary weighing rules evidence and the the weaver testified examina- credibility of witnesses. This was weaver, Gaddy, loom. This did jury- testify loom, picked that he went over ta the But majority say'that state of up the and laid front of the pleadings plaintiff may is such as that stayed “I loom: there at work. next avail herself ipsa of the res rule. that that was done to loom Mr. Caston the ones I seen at and Mr. Benton was next The doctrine ipsa loquitur of res is a rule They up the started the loom and it loom. reasoning of on evidence. It is a rule fifteen ten or minutes. pleading. Texas-La. Power Co. v. Daniels stopped it. Mr. Benton looked the over (Tex. App.) 184; Civ. S.W.(2d) 179, He started to examine it.” Bridges, Bonita App. 798, Theatre v. 31 Ga. S. E. Chenall v. Palmer Brick further He testified: “As what could 106, 117 Ga. 43 E.S. Atlanta Coca-Cola position throw the shuttle in that Bottling Danneman, App. 44, Ga. wrong. could have been started the jurisdic S. E. 542. It is the rule in most result, can start the loom to that tions unless thei plaintiff has definite push up can the shuttle the box fail to allegations negligence, Augusta itas did in start it.”' R. & Electric Co. v. Weekly, 124 Instead, then, being ease, of this as the E. 444, tied particular ground, itself to a majority testimony “candid, states clear fault, may, or cause of general alle reasonable, unopposed by other gations fault, avail itself of the doctrine. by. ir- circumstances which are witnesses pleading Georgia rule of is even more it,” reconcilable ease in which liberal. There it is held where evidence testimony defendant relies on the of two of its is admitted without objection, supports which employees, one, other, the the the fact is in the action, same cause of greatly both in exoner- loom interested though might have been excluded on ob company ating both themselves and the from jection, may be availed of as a basis for re blame, directly positively contradicted covery, if, under the facts ease, of the the contradicting testimony of, by, and the Small- petition could amendment have been so wood, weaver, injury that the the conformed proof as to render such tes result, mechanism, not of fault in the but of timony relevant. Atlantic Life Ins. Co. v. operation Besides, fault in of it. the testi- Jackson, App. Na mony of Caston that the machine could not pier Strong, 91 S. E. 579. right go for while wrong, run and then but right While, any must either run all the time or deficiency time, positive plaintiff’s pleading, is contradicted it has been cured reception of Benton Lyle, of the evidence without objection, record; whole plaintiff while the of Benton does need to invoke this rule. machinery as to the he fixed the fullest of way pleadings as In kind he tp what found makes a fact in issue the defective issue for the character of the loom permit whether did not fix it so that came so as to her to recover if the evidence thing ing petitioner of the condition took, position sustains pe- loom.” original said Though in her negligence. spoke pick- charge specifically did tition she these allegations, competent Under it was out crooked, and warped, er were sticks plaintiff for the fact functions, perform their would not line, and tended to boxes out establish were out a eighteenth paragraph she and that doc- typical ease flew out. When the is con- evidence There she trine. light sidered in unquestioned physi- neg- condition, the defendant out something wrong cal fact that either operated in that ligently permitted machinery, with Smallwood’s pick- not throw condition that it would I think clearest makes picker er as intended stick to stick jury’s verdict, kind of for the a case toas that, had it manufacturer, and which was the case. thrown condition, the shuttle would respectfully I therefore dissent. between picker picker stick stick to struck warps not have and would injury therefore eye; that her loom, and improper result was the improper condition SPEAR, Inc., HARRIS & v. CONCORDIA negligence. amend- first plaintiff’s When she FIRE INS. CO. OF MILWAUKEE. by striking the word “stick’-’ ed No. 6894. fully allege, “picker,” she amended to more stick, a defect in Appeals, Circuit Ninth Court Circuit. pickers in which the boxes Dec. alignment, and were operate were especially loose, the one on left-hand machinery vibration line, had caused box to become out negligence. condition was Finally, by of March trial amendment un- fixer had when she learned how repair loom, she amended to dertaken to allege:

“Plaintiff amends leave of the Court

follows: adding “Paragraph thereto: The actively negligent defendant was improperly knowingly repaired the in that it hurt in this, at which she the box shuttle box and few through injury it, its loom prior Benton, improperly negligently re- pasteboard wads paired placing same place where it is between screwed iron) (both being the machine in such a ordinary exercise of it knew care long sup- known should have that would knowing position; that the loom

port it vi- would throw or mash it brated and thereby throw shuttle box out of expelled thrown so that inte operator where of loom loom aisle worked and petitioner was and where thrown in to on other side as intended or do if in fix. using “B. In was not snug rigid fit

trued, and would not as one trued and fitted. knowing facts

“C. In these and not warn-

Case Details

Case Name: Arnall Mills v. Smallwood

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 16, 1933

Citation: 68 F.2d 57

Docket Number: 7020

Court Abbreviation: 5th Cir.