187 Va. 473 | Va. | 1948
delivered the opinion of the court.
The Circuit Court of Campbell County rendered judgment for $5500 damages against the defendants, Burruss Land and Lumber Company, a partnership (plaintiffs in error), in favor of the plaintiff W. E. Suddith. The plaintiff’s notice of motion for judgment alleges that he sustained severe physical injuries by being struck by a log thrown from a ripsaw or edger machine while he was rightfully on the premises of defendants’ sawmill or planing mill, and that the injuries were caused by the negligence of defendants’ agents and servants in the operation of said machine in negligently failing to warn the plaintiff of the danger to which he was exposed at the time of the injury. Defendants’ brief gives the following description of this machine and its manner of operation, the accuracy of which is not questioned by the plaintiff.
“The edger is a machine that takes the rough edges off of the boards after the log has been sawed into the boards by the band saw. Also the edger saws the board into the proper widths. The band saw cuts the board into the proper thickness; then the edger cuts the board into the proper width. This particular ¿dger has eight saws with one axle, which was run at approximately 1,200 revolutions per minute; for example, the band saw will cut a board,
Plaintiff was an assistant commissioner of the revenue of Campbell county, and following the usual custom of that office was visiting the sawmill in order to obtain a list of the taxable property of the various employees. He had already interviewed several of them and was waiting to interview Arrowwood, the foreman, as soon as he should be temporarily at leisure. While waiting for such interview he was standing behind the edger machine. Suddenly the log which was being processed' jammed and was thrown violently backward out of the machine, striking the plaintiff and inflicting upon him serious and painful injuries.
The first three assignments of error challenge, in one way or another, the sufficiency of the evidence to support the verdict.
The trial court held that the machine in question was not inherently so dangerous as to require a notice or other general warning when it was operating normally. But it also held that the testimony of defendents’ foreman Arrowwood disclosed that he had knowledge that it was not operating normally just preceding the accident. He observed the log catch in the saw teeth and knew that this constituted a danger or peril to the plaintiff whom he saw standing behind the machine. Therefore, the court held it was a question for the jury to determine whether, under the circumstances, the foreman used reasonable care to assist in preventing the ejection of the log, and also to warn the plaintiff of his danger.
With respect to their alleged negligent failure to warn, the defendants insist that the allegations of negligence in the notice are predicated solely upon the theory that the machine is inherently dangerous even when operating in a normal manner; that the notice alleges no violation of a duty to warn of an unexpected danger which might
Upon the question of the sufficiency of the evidence to support a finding by the jury of negligent failure to warn, the testimony of several witnesses is pertinent. The verdict of the jury in favor of the plaintiff, of course, entitles him to have all conflicts in the evidence and reasonable inferences therefrom resolved in his favor.
Plaintiff’s witness, R. M. Felton, testified that there is always the danger, in connection with the operation of the edger machine, that the piece of timber being processed will be ejected backward out of the machine at a rapid rate of speed, although “it is a very, very rare occurrence;” that this possibility or danger is a fact well known to the operators of such machine; that it is greater in handling dry timber and hardwood than softer woods, and that the amount of care used in the operation governs the degree of the possibility of personal injury.
A further reason is advanced against the sufficiency of the evidence. Defendants assert that, even though
It is not surprising that the plaintiff retained no clear or detailed recollection of exactly what occurred just prior to the accident. He stated that he was not paying any special attention to the machines. Even where the observation of events occurs under favorable circumstances the opinions of
The rule that a plaintiff is bound by his own testimony, which was laid down in Massie v. Firmstone, 134 Va. 450, 114 S. E. 652, and has been followed in subsequent cases, had no application to evidence of this character. It is intended to compel the exercise of good faith on the part of a litigant not to penalize him for honest mistakes or infirmities of memory. Particularly would this be true in an expression of opinion as to the lapse of time between links in a swiftly moving chain of events. See Waller v. Waller, 187 Va. 25, 46 S. E. (2d) 42, 44; Moore on Facts, sections 863, 728, 745.
We think that under the circumstances shown by the evidence it was for the jury to weigh the testimony of the several witnesses, and that the conclusions reached by the jury and approved by the trial judge should not be disturbed by this court.
The fourth assignment of error is to the giving of plaintiff’s instruction No. 1, which is as follows:
“The Court instructs the jury that if they believe from the evidence that when the plaintiff, Suddith, entered the property of the defendant, his presence there was known to the employees of Burruss Land and Lumbr Company in charge of the plant, that the plaintiff approached the edger while it was operating, and that said employees knew of his approach to said edger, and knew, after the piece of timber in the edger hung or failed to pass through, that the plaintiff was in a position of danger from the operation of said edger, and that the plaintiff was himself unaware of*483 his danger, then it became and was the duty of said employees to use reasonable care to avoid injuring said plaintiff; and if the jury further believe from the preponderance of the evidence that said employees then and there failed to use such reasonable care and that such failure was the proximate cause of the injury to Suddith, then they must find for the plaintiff.”
This instruction was objected to on the ground that the only allegation of negligence contained in the notice of motion was a failure to use reasonable care to warn the plaintiff of the danger to which he was exposed, whereas the instruction permitted a verdict for the plaintiff if the jury should find the foreman Arrowwood was negligent in not continuing to hold the timber after he discovered plaintiff’s danger or in some other respect. It is true that, while the said notice charged the defendants with negligence “in the operation of” said machine, the only specific negligent act or omission complained of was failure to warn. It is also true, however, that the only evidence of said act of the foreman in not continuing to hold the timber was his own statement to that effect when he was testifying, having been called by the plaintiff as an adverse witness. The defendants did not object to this evidence or afterwards move to exclude it. If they had done so an opportunity would have been afforded the plaintiff to amend his pleading to conform thereto. There is no indication that he had any previous knowledge of this action of the foreman, nor does it appear that the defendants have been prejudiced by a failure to amend the charge of negligence in the notice. In the case of Newport News & Old Point R., etc., Co. v. McCormick, 106 Va. 517, 518, 56 S. E. 281, the court says:
“The first assignment of error is to the refusal of the Court to grant an instruction founded upon an alleged variance between declaration and proof. Of that assignment it is sufficient to observe that no objection having been made to the admission of evidence, or no motion made to exclude it on account of the supposed variance, the objection must be considered as having been waived. This
See also, to the same general effect, Conrad v. Ellison-Harvey Co., 120, Va. 458, 91 S. E. 763, Ann. Cas. 1918B, 1171; Virginia, etc., R. Co. v. Bailey, 103 Va. 205, 49 S. E. 33; Hawkins & Buford v. Edwards, 117 Va. 311, 84 S. E. 654.
At defendants’ request the court granted instruction D, which was as follows:
“The court instructs the jury that the only duty owed by Burruss or their employees to Suddith was, after they realized Suddith was in peril, to use such care and warning as a reasonably prudent person under similar circumstances would have used, and therefore you are instructed that if you believe from the evidence in this case that Philip Arrowwood did attempt to help Viar get the board in question through the edger, and after doing so saw and realized that Suddith was in peril, and that Arrowwood did thereafter use such care as a reasonably prudent person would have used under similar circumstances to warn Suddith of his peril, then the defendants are not liable in this case and you should find a verdict for the defendants.”
This instruction restricted the jury to the consideration of failure to warn as the only act of negligence on which they could base a verdict for the plaintiff and we think was more favorable to the defendants than they were entitled to, in view of the foreman’s testimony.
We have considered all the instructions, those refused as well as those granted, and the defendants’ objections with respect to them, and find no error prejudicial to the defendants.
On the whole case we are of opinion to affirm the judgment of the circuit court.
Affirmed.
Hudgins, C. J., dissenting.