Bibb Manufacturing Co. v. Snow

Hill, J. (After stating the foregoing facts.) 1. The first ground [506] in the motion for a new trial complained of the amount of the verdict, alleging that it was excessive. The code of this State (Park’s Code, § 4399) provides that, the question of damages being one for the jury, the courts should not interfere unless the damages found were so small or so excessive as to justify the " inference of gross mistake or undue .bias; ” and it has been uniformly held by the Supreme Court and this court that a verdict giving damages alleged to be excessive will not be set aside unless the amount reasonably indicates that the finding resulted from bias or gross mistake. The evidence on this point showed that three fingers of the plaintiff’s right hand were cut off by the machine, that on account of the injuries he was confined, under the care of a physician, for over eleven weeks, suffering great-pain, and that the deformed condition of his hand would not only diminish his capacity to labor, but would cause him great humiliation and mortification for the remainder of his life. In view of the very wide discretion given by our law to the. jury in the assessment of damages for pain and suffering, the loss of time occasioned by the injuries, and the diminution of capacity to labor caused by the loss of three fingers of the right hand, the conclusion is justified, in the opinion of this court, that the jury, in fixing the amount of damages, was not influenced by bias or prejudice or gross mistake. 2. The plaintiff in error excepts to the charge of the court that “a minor assumes the ordinary risks of employment of which he undertakes, in so far as those risks are or ought to be known or appreciated by the minor, whether the source of his knowledge be his own observation and experience, or instructions which he received from his employer or his employer’s representative ; ” the error assigned being that the charge was applicable only to minors under the age of 14 years, and that a servant over the age of 14 years assumes all ordinary risks of his employment, barring only extraordinary and unusual risks and risks brought about by the negligence of the master. We think the general principle of the assumption of risks by a minor employee is correctly stated in this excerpt; and if the defendant desired a more specific application of the principle to minors over the age of 14, proper instructions should have been requested. Besides, there was evidence that the minor in question, who was not quite [507] sixteen, had never worked on the particular machine whereon he was hurt,-until a few days before the injury, and that he was put to work on the machine without any warning or instruction as to its dangerous character, and that the dangerous character of the machine was not so manifest as to make unnecessary such instructions or warnings. The verdict may have resulted from this view of the evidence, which indicated negligence on the part of the defendant, regardless of the age of the minor. 3. The 3d and 5th grounds of the motion for a new trial complain of excerpts from the charge of the court, wherein the jury were instructed that a servant’s knowledge of a defect in a machine is a bar to his suit only when it appears that he understood and appreciated the risk created by that defect; and that when deciding that question the jury would be authorized to consider the mentality, the experience, or the lack of experience, of the servant. The complaint as to these instructions was that they excluded from the minds of the jury the question whether the master has used due and proper care in ascertaining the mentality' and experience, or lack of experience, of the servant at the time of his employment. In this connection the court fully instructed the jury that if the minor comprehended the risk involved, he could not recover, and that he was bound to exercise his own skill and diligence to protect himself, in the exercise of proper care and diligence in discovering the risk of his employment, and also specifically instructed the jury that if the danger was manifest and obvious, and as easily known to the servant as to the master, the latter would not be liable for any failure to give warning of the danger or instructions to the employee. The charge, therefore, on this subject, as a whole, sufficiently submitted to the jury the law relating to the facts of the case. The excerpts objected to in these grounds of the motion, we think, could not have misled the jury, and, so far as they went, were sound. If they were not full enough, and more specific and particular instructions were desired, a proper request should have been made. 4. The charge of the court on the subject of contributory negligence and the doctrine of comparative negligence was, in the abstract, correct, but we do not think that it was applicable to the facts in the case. This question was not involved either in [508] the pleadings or the evidence. The case was tried on the issues that the machine upon which the plaintiff was put to work was defective and not a machine equal in kind with those in general use; that the plaintiff was inexperienced in the use of such a machine and was unacquainted with its dangerous character, which was not manifest and apparent, and that the defendant failed to warn him of such dangers. Therefore the charge on the subject of comparative negligence was not applicable. But we fail to see how it was prejudicial in any respect to the defendant. We conclude, therefore, that none of the exceptions contain any substantial merit; that the case was fairly tried, and the verdict is supported by the evidence. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.