38 Tenn. 610 | Tenn. | 1858
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 into 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
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 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 that 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, &c.; and ask themselves. the
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 proohein ami, at any time during minority; or, he might decline doing so, and bring his suit au 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, 1 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, &c., 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,
We are of opinion, likewise, that the verdict is against the evidence. According to the maxim of the common law, sic utere tuo ut alienwn non Icedas, every person is responsible in law for the consequences of his own negligence. Broom’s Legal Maxims, (Am. ed. of 1854,) 253. And the proper criterion for determining the liability of the party is, whether he has been guilty of gross negligence, viewing his conduct with reference to the caution which a prudent' man would, under • the
In the argument for the defendants, the applicability of this doctrine to the case under consideration, rather than its correctness, is controverted. The ground of defence is, that the injury was occasioned, not by any negligence or want of proper care on the part of the defendants, but solely by the gross negligence and wilful misconduct of the plaintiff himself, who was a trespasser
It is certainly true, in general, that if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover; for, if by ordinary care and prudence he might have avoided it, he must be regarded as the author of his own misfortune. But an important and well established qualification of this principle is, that the mere want of a superior degree of care or diligence cannot be set up as a bar to the plaintiff’s claim for redress; and that although the plaintiff may himself have been guilty of negligence, yet unless he might, by the exercise of ordinary care, have avoided the consequence of the . defendant’s negligence, he will be entitled to recover. Lynch v. Nurdin, 1 Ad. & Ellis N. S., 29; Eng. C. L. R., vol. 41, p. 422; 3 M. & W., 248; 22 Vermont R., 214. It is likewise true, that in cases of mutual negligence, where the parties are equally blameable, there can be no recovery.
The case of Hartfield v. Roper, 21 Wendell’s R., 615, is relied on by the defendant’s counsel to establish the proposition, that an infant of tender years, who has received an injury by his own gross negligence, which might have been avoided by ordinary care, is as much precluded from a recovery as an adult. That case does decide, where a child of such tender age (two years old) as not to possess sufficient discretion to avoid da.nger, is permitted by his parents to be in a public highway, without any one to take care of him, and is there run over by a traveller and injured, there can be no recovery, unless the. injury was voluntary, or was
This decision is no less opposed to the current of authority upon the point, than to every principle of reason and justice. It is, literally, to visit the transgression of the parent upon the child.
Lord Denman lays it down in Lynch v. Nurdin, above cited, that “ ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation.” To exact of the plaintiff a degree of caution and prudence, which he could not possibly be possessed of, would' be an absurdity. In Lynch v. Nurdin, the facts briefly were, that the defendant’s servant negligently left his horse and cart in the street, with no one to take care of them. Plaintiff, a child seven years of age, got upon the cart in play; another child led the horse on, and the plaintiff in getting off, fell and was run over, and had his leg broken. It was held, that plaintiff was entitled to recover, notwithstanding that, by his positive wrong in getting upon the cart, he was the co-operating cause of his own misfortune, Lord Denman was of opinion, that no greater degree of care was to be required of him than was compatible with his age and capacity; and that if, in getting on the cart, he merely indulged the natural instinct of a child, in amusing himself with the empty cart, the defendant could not avail himself of that fact; that as
So in Illidge v. Goodwin, 5 C. & P., 190, tbe defendant’s cart and horse were left in tbe street unattended, and a person passing by whipped tbe horse, and caused him to back tbe cart against tbe plaintiff’s window, it was held that tbe defendant was liable. Tindal, C. J., said, “If a^man chooses to leave a cart standing in. the street, be must take the risk of any mischief that may be done;” and that tbe wrongful act of the, person in whipping the horse was no defence. In Dixon v. Bell, 2 M. & S, 198, the. defendant sent a servant girl, thirteen years of age, to bring a loaded gun, with direction to the person in whose possession it was, to take out the priming, which he did; and the girl, in play, pointed the gun at plaintiff’s son, a child of some eight or nine years of age, and, drawing the trigger, it went off and injured the child. Lord Ellenborough held, that by the defendant’s neglect to discharge the gun, he had left it in a state capable of doing mischief; and the law, therefore, held him responsible. In Robinson v. Cone. 22 Vermont Rep., 214, a child of less than four years of age was amusing himself sliding down a hill in the public highway; the defendant was driving a sleigh rapidly down the hill, and the plaintiff’s left leg was caught by one of the runners of the sleigh, and fractured so as. to require amputation. In answer to the argument, that the injury to the plaintiff was caused-by his own negligence and wrong, the Court said, that although a- child of tender years be in the highway, through the fault or negligence of his parents, and so
These cases rest upon the principle, that the law imposes restrictions upon every one, as well in the use and enjoyment of his property, as in his personal actions and conduct; and that, though a man do a lawful thing, yet if any damage thereby befalls another, -he shall be answerable, if ho might have avoided it. Broom’s Legal Maxims, 248.
The doctrine of these cases is not in conflict with the general principle, that a person shall not recover for an injury brought upon himself by his own want of reasonable care and prudence, or which his want of ordinary care contributed. to produce, or where the parties must
The doctrine has been carried further in one class of cases, and to the extent that even wilful misconduct, on the part of the plaintiff, will not necessarily exclude him , from the right to sue. As in cases where spring-guns and dangerous instruments have been set upon one’s own ground for the protection of his property; and persons, without notice, by trespassing on the grounds, have been seriously injured. The case of Bird v. Halbrook, 4 Bing., 628, is an illustration of the application of the doctrine. In that case the defendant set a spring-gun, without notice, in a walled garden at a distance from his house, for the protection of his property, some of which had been stolen; and the plaintiff, who climbed over the wall ip pursuit of a stray fowl, having been shot and seriously injured, the defendant was held liable.
But it is unnecessary to refer to other cases upon this subject. We feel clear, upon the facts proved in this record, that the defendants were guilty of negligence — perhaps it might be said of gross negligence— in leaving the machinery so exposed as that, by possi bility, it might be the cause of injury to others. And neither the negligence of the parent, in suffering the child to play about the mill, nor the supposed wrongful
And we think it was the duty of the Court to have instructed the jury specifically, as a matter of law, that the facts stated, if true, constituted that degree of negligence which would render the defendants liable in damages.
Judgment reversed.