P. Lorillard Co. v. Clay
P. Lorillard Co. v. Clay
Opinion of the Court
delivered the opinion of the court.
Thus viewing the testimony, the case at bar is stated as follows: Bryan Clay was reared in the mountains of North Carolina, knew nothing whatever about machinery, and had never been employed elsewhere than on the farm on which he was reared. The P. Lorillard Co., Inc., was engaged in the manufacture of cigars in the city of Richmond, and occupied a large factory five stories high, well filled with machinery suitable for its business; the third story being used for a machine shop and the fifth, in which the injury was sustained, being used for stripping or stemming the tobacco. On this floor there were 250 machines for stripping tobacco. Clay, who was twenty years of age, entered the employment of the company as an apprentice on December 29, 1916. For about two months and a half he was employed simply to oil machinery, after that he was given other employment, but several months before the injury complained of he was put in charge of about fifty stripping machines on the fifth floor. His business here was chiefly to look after the machines under his control and keep them running, though he was directed to as
In Abernathy v. Emporia Mfg. Co., 122 Va. 406, 424, 95 S. E. 418, 423, it is said: “The question of the propriety of ordering a view lies largely in the discretion of the trial court which should only grant it when it is reasonably certain that it will be of substantial aid to the jury in reach- - ing a correct verdict and whose decision will not be reversed -unless the record shows that a view was necessary to a just decision.”
In Scott v. Doughty, 124 Va. 358, 368, 97 S. E. 802, 805,. .it is said: “The trial court refused to grant the view because it was of the opinion that the jury could not ascertain ‘ordinary’ low water mark by one view; and also the • result, if not the express object, of the view would be to supply evidence rather than to apprehend it. There was no error.in this ruling. It was a matter resting in the sound discretion of the trial court and in this case the discretion was well exercised.”
In 1 Greenleaf on Ev. (16th ed. by Wigmore) pp. 33-4, it is said: “While, as already pointed out, autoptic preference is to be distinguished from evidence both testimonial' and circumstantial in the strict sense of the word it is at any rate an additional source of belief or proof over and above the statements of witnesses and the circumstantial evidence. Its significance in this respect has often been discussed by courts in ruling upon instructions as to the nature of jury-views; and in spite of some opposing precedents the generally accepted and the correct doctrine is that a view furnishes a distinctly additional source of proof, i. e., the thing itself as autoptically observed.”
“The court instructs the jury that it is their duty to try tlhis case without being influenced by sympathy or the mere fact that the plaintiff! was injured. The jury are under a*749 solemn obligation to try the case according to the law and the facts, and unless there is proof of negligence on the part of the defendant and no proof of contributory negligence on the part of the plaintiff, or of negligence on the part of a fellow-servant sudh as would relieve the defendant of liability, as pointed out in other instructions, the plaintiff is not entitled to recover and they must find for the defendant.”
There was no error in refusing this instruction as it was covered by the oath of the jurors, and could not have been in any way helpful to them in arriving at a correct verdict.
“The court instructs the jury that there can be no recovery in this case on the ground that the drill described in the evidence was too heavy for the work on which it was being used or that it was out of repair.”
There was not only evidence tending to show that the drill was too heavy, for the work on which it was used, but in addition thereto the defendant’s view of that question was fully covered by instructions I and L given at its instance. For similar reasons there was no error in refusing to give defendant’s instruction B-21 The error, if any, in refusing instruction No. 8 tendered by the defendant is not sufficiently assigned. The language of the assignment of error in the petition is, “The petitioner submits that this instruction should have been- given.” This court will not search the record for errors not pointed out in the petition. The court did not err in refusing instructions 12 and 12 C tendered by the defendant as the subjects embraced therein were adequately covered by instructions L O and R given at the instance of the defendant. Instruction 12 B tendered by the defendant was slightly modified and as modified given as instruction R. We find no error in the modification.
“The facts'of this case are not complicated, and a few simple instructions would have been all that was necessary to have enabled tike jury to have intelligently applied the law, and yet the number of instructions offered resulted in requiring thé trial court to pass on twenty-five instructions. It is sufficient in ajl cases for a trial court to give such instructions as are necessary or proper to enable the jury to arrive at a correct verdict, after considering the evidence in all of its phases. After so instructing them it may reject all other instructions tendered as it is never error to refuse an instruction upon any point upon which the jury has already been sufficiently instructed,” citing Richmond v. McCormack, 120 Va. 552, 91 S. E. 767, and cases cited.
“If the instructions given are founded upon the evidence, correctly state the law, and fully cover the case, it is immaterial wihether they were prepared by counsel or by the court, and all other instructions may be refused.”
1. “In his opening statement counsel for the plaintiff told the jury that the defendant would attempt to escape liability by the wornout doctrine of contributory negligence, and as to the defense of contributory negligence he stated
“In his argument his counsel stated that plaintiff had never used a drill-at all, and that his duties at the time of the accident were merely to get tags from nails where operators had hung them showing that a machine was out of order, inspect the machine, and report the trouble to the foreman'. No exception was taken to this language by counsel for defendant.
2. “In his closing argument to the jury, when discussing the use of one portable drill for various sizes of bits, plaintiff’s counsel stated that it was more economical to do this, hence employers did not buy separate drills for different sizes of bits. He said that machines were more expensive than flesh and blood, that men could always be gotten, but that it cost money to buy new machines; and said that if the jury allowed his client to go from the court room without compensation, they would be guilty of the character of act which is bringing on anarchy in this country. Counsel for defendant objected and the court sustained the objection and said that counsel should not be drawing comparisons to array capital against labor, and directed the jury not to consider what counsel had said. There was no withdrawal of the remarks made by counsel for the plaintiff.
3. “In his closing argument to the jury, when discussing the-attitude of employers and the economy they exercised in turning out their product, counsel for plaintiff said that' the employers were willing to go ahead and take chances
4. “In his argument counsel for. plaintiff spoke of his confidence in the action of the jury, even though he was 'opposed by two lawyers, noted for their success, in defending damage suits.’ No exception to this language was taken by counsel for defendant.
5. “In his closing argument, counsel for plaintiff stated that his client had been cut down in his young manhood, and asked the members of the jury what one of them would take for the loss of an eye. He referred to the loss to his client and his mental anguish, and quoted certain language which he said had been used by Judge Riely of the Supreme Court of Appeals of Virginia in an opinion, to the effect that there was no adequate way to compensate in damages for the physical sufferings of a human being. When this statement was made to the jury counsel for the defendant made no objection to the court.”
It will be observed that no objection was made or exception taken to the last three statements of counsel until after the verdict, and then only retrospectively as indicating that the verdict was the result of prejudice induced by the improper argument of counsel. Statement No. 3 referring to insurance companies, taking care of employes if trouble occurred was clearly improper and should not have been made. Statement No. 4, as to the success of opposing counsel in defending damage suits was harmless. Statement No. 5 was improper in asking members of the jury what one of them would take for the loss of an eye. In the recent case of Keathley v. Ches. & O. R. Co. (W. Va.), 102 S. E. 244, 249, the following remarks of counsel were said to be manifestly improper:
“You, gentlemen of the jury, put yourselves in the place of the plaintiff, in estimating damages; take into consid*753 eration what amount, under such circumstances, would compensate you if you were a young man in the bloom of health, with your wife, about to start on the sea of life.”
“Nothing that the court, ruled, said or did was presented for revision, and the functions of this court in its appellate character are' strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. If the statement complained of was improper, of which we are by no means convinced, the presumption is, that it would have been excluded and the jury duly cautioned against being influenced by it, had the attention of the trial judge been called to it and his action invoked upon it; and we cannot put him in error for failure to rule on a matter which has never been presented for his decision, or decided by him.” Lunsford v. Dietrich, 93 Ala. 565, 572, 9 So. 308, 311, 30 Am. St. Rep. 79, 86.
In a, note in L. R. A. 1915F, at page 496, there are given eighteen verdicts for the loss of one eye, which have met the approval of the appellate courts of the States in which they were rendered. They range from $15,000 to $1,400. One of them is for $15,000, one for $11,000 and one for .$10,000. The residue are for smaller sums, and the average of the whole is $5,424. These cases come from ten different States, to-wit: Illinois, Indiana, Iowa,, Michigan, Minnesota, Missouri, Nebraska, Ohio, Oklahoma and Texas. Similar, though smaller, collections of cases and embracing chiefly the cases already referred to may be found in 16 Ann. Cas. 39, and 26 Ann. Cas. 1913A, 1363. A collection is also given in 17 Corpus Juris 1116, but in all of these collections the average amount awarded for the loss of one eye is less than the average first above stated. From the same note in L. R. A. 1915F, it will appear that verdicts were deemed excessive, and were reduced as follows:
A verdict of $8,000 in a Texas case, De La Vergne & Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319, was considered excessive and reduced by $1,000.
A verdict of $15,000.00, in favor of a laborer who had been earning $1.60 per day, and whose earning capacity was cut down to $15.00 or $20.00 per month, was reduced to $10,000.00. Ribich v. Lake Superior Smelting Co., 123 Mich. 401, 82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215.
A verdict of $12,821.00 in favor of a railroad fireman,
A verdict of $12,000.00, for a stenographer and bookkeeper, was held excessive and reduced to $6,000.00. Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777.
So a verdict of $10,000.00, for a girl, the operator of a machine, was reduced to $6,000.00. Western Electric, etc. v. Prochaska, 129 Ill. App. 589.
In Heddles v. Chicago, etc., R. Co., 74 Wis. 239, 42 N. W. 237, where the injury resulted, in the amputation of both legs of the plaintiff, a, verdict for $30,000.00 was set aside, and the court said: “No rational being would change places with the injured man for an amount of gold that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages. Courts and juries must deal with such questions in a deliberate and practical sense.”
Chicago, etc., R. Co. v. DeVore, 43 Okla. 534, 143 Pac. 864, L. R. A. 1915F, 21, is the only case we have found in which a verdict for $15,000 for the loss of one eye was approved. In that case the plaintiff was a man thirty-four years old, and physically strong, and had worked his way up to' the position of engineer in the railroad service, and had prepared himself and selected this for his life’s work. He was receiving from $125 to $130 per month, and his injury reduced his earning capacity to ;$65.00 per month, and disqualified him from ever holding the position of engineer with any railroad company, and there was nothing in the record to indicate that the jury was influenced by passion or prejudice.
In Libby, McNeil & Libby v. Banks, 209 Ill. 109, 70 N. E. 599, the verdict was for only $7,000, although the plaintiff not only lost one eye, but was incapacitated to do work of any kind.
Amended and affirmed.
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- 1. APPEAL AND ERROR-Case MEet be Stated as Jur~j May Have Viewed it.-Formerly a plaintiff in error stood in the Supreme Court of Appeals in the position of a demurrant to the evidence, but this has been changed. Code of 1919, sec. 6365. Now, in stating a case in the Supreme Court of Appeals which has been tried by a jury, it must be stated as the jury may have viewed it, remembering always that the jury are the sole judges of the weight to be given to the testimony of the witnesses, and also bearing in mind the weight attached to the verdict of a jury which has received the approval of the trial judge. 2. AM11~NDMENTS-StWt&ng New Ca~use of Aotion-Limitctt~on of Actions~-In an action by a servant for the loss of an eye, caused by the breaking of the bit of a drill, plaintiff’s declaration was amended charging an additional ground of negligence on the part of defendant, to-wit, that the drill was out of repair and was. too heavy to use with a one-fourth inch bit, which resulted in the injury complained of. Objection was made that the amendment stated a new cause of action which was barred by the statute of limitations. Held: That the amendment did not state a new cause of action. 3. AMENDMENTS-NeW Cauee of Action.-If an amended declaration asserts rights or claims arising out of the same transaction, act, agreement, or obligation as that upon which the original declaration is founded, it will not be regarded as for a new cause of action, however great may be the difference in the form of liability asserted in the two declarations. 4. PLEADING-Time of Filing-Discretion of Cowrt.-A very large discretion is vested in the trial courts in the matter of the time for filing pleadings, and when not controlled by statute their action will not be set aside unless plainly erroneous. 5. PLEADING-Time of Filing-Plead of the Statute of Limitations-Ha~rt1ess Error.-The rejection by the trial court~ of defend-. ant'a plea of the statute of limitations to an amendment of the declaration, on the ground that it -was not filed in time, was harmless, as the amendment of the declaration did not make a new ease, and the cause of action was not barred at the time the original action was instituted. 6. View—Discretion of Trial Cowt.—The motion for a view is addressed to the sound discretion of the trial court, and its ruling refusing a view will not be reversed unless it appears from the record that a view was necessary to a just decision. 7. View—Object.—The view of the grounds at the scene of an accident which is the basis of an action may better enable the jury to apply the testimony disclosed upon the trial, but does not authorize them to base their verdict on such view, nor to become silent witnesses to facts which were not testified to in court. 8. View—When Granted.—The propriety of ordering a view lies largely in the discretion of the trial court, which should only grant it when it is reasonably certain that it will be of substantial aid to the jury in reaching a correct verdict, and its decision refusing a view will not be reversed unless the record shows that it did appear to the trial court that such view was necessary to a just decision, and that the statutory provision for expenses in a civil case were complied with. 9. View—When Granted.-—There are cases where a view will furnish “a distinctly additional source of proof, i. e., the thing itself as autoptically observed.” In such case the view should be granted, as it would be “of substantial aid to the jury in reaching a correct verdict.” 10. View—Refusal—Case at Bar.-—In the instant case a view of the premises was rightly refused on the ground that the accident happened some eighteen months prior, when conditions may have been different, especially in view of the absence of any evidence that conditions were the same when the view was asked as when the accident happened. 11. Appeal and Error—Assignment of Error—Instructions—Evidence Not Set Out—Case at Ban-.-—An assignment of error that the evidence in the case did not support the latter parts of four lengthy instructions, and stating that the evidence had been so fully discussed that, petitioner deemed it unnecessary to discuss it again under each instruction, is insufficient. It is not sufficient to say of an instruction simply that the latter part of it is not justified by the evidence, and to make thp same objection in gross to four lengthy instructions aggravates the difficulty. 12. Appeal and Error—Assignment of Error—Instructions—Evi- - dence Not Set Out—Case at Ban-.—To say that the “evidence in this case did not justify the instructions” is an admission that there was evidence in the cause upon which the trial court based its instructions, but a denial of its sufficiency. The petition should have set out the evidence and pointed out wherein it was insufficient as a basis for the instructions. The Supreme Court of Appeals will not undertake that' burden. The fact that the greater part of the evidence had already been discussed in the petition in another connection does not relieve the petitioner from the necessity of showing that there was not sufficient evidence to support the instructions. 13. Appeal and Error—Assignment of Error—Reply Brief.—The Supreme Court of Appeals will not, as a rule, notice assignments of error made for the first time in the reply brief of the plaintiff in error, as it is not a compliance with the statute on the subject and is not fair to the defendant in error. 14. Appeal and Error—Assignment of Error—Instructions not Supported by the Evidence—Assignment Musi be Specific.-—An assignment of error in general terms, where the petitioner does not “lay his finger on the error,” or which requires the appellee or the court to hunt through the record from beginning to end to ascertain what the evidence is that the plaintiff in error deems insufficient to support an instruction, when the plaintiff in error could easily put his finger on it, places a burden upon-the court that it ought not to be expected to bear. 15. Instructions—General Duty of Jury.—In an action for personal injuries, defendant asked for an instruction that it is the duty of the jury to try the “case without being influenced by sympathy or the mere fact that the plaintiff was injured. The jury are under a solemn obligation to try the case according to the law and the facts,” etc. Held: That there was no error in refusing this instruction, it was covered by the oath of the jurors, and could not have been helpful in arriving at a verdict. 16. Instructions—Evidence to Support Instructions.—In an action by a servant against his master for the loss of an eye caused by the breaking of the bit of a drill,’there was evidence tending to show that the drill was too heavy for the work on which it was used. It was not error, therefore, to refuse an instruction that there could be no recovery in the case on the ground that the drill was too heavy for the work, especially as the defendant’s view of that question was fully covered by other instructions. 17. Assignments op Error—Sufficiency of Assignment—Error in Instructions.—An assignment of error, upon the refusal of an instruction, was as follows: “The petitioner submits that this instruction! should have been given.” Held: That the error, if any, in refusing the instruction was not sufficiently assigned, as the Supreme Court of Appeals will not search the record for errors not pointed out in the petition. 18. Instructions—Repetition.—It is sufficient in all cases for the trial court to give such instructions as are necessary or proper to enable the jury to arrive at a correct verdict, after considering the evidence in all of its phases. After so instructing them it may reject all other instructions tendered as it is never error to refuse an instruction upon any point upon which the jury has already been sufficiently instructed. 19. Instructions—Prepared by Counsel or by the Court.—If the instructions given are founded upon the evidence, correctly state the law, and fully cover the case, it is immaterial whether they were prepared by counsel or by the court, and all other instructions may be refused. 20. Arguments of Counsel—Personal Injury Suit—Reference to Insurance.—In an action for personal injuries, counsel for the plaintiff stated in his argument that employers were willing to go ahead and take chances and leave it to the insurance companies to take care of them if trouble occurred. Held: Clearly improper. 21. Arguments of Counsel—Reference to Success of Opposing Counsel.—In an action for personal injuries, plaintiff’s counsel spoke of his confidence in the action of the jury, even though he was “opposed by two lawyers noted for their success in defending damage suits.” Held: Harmless. 22. Arguments of Counsel—Personal Injury Suit—Asking Jwry to Put Themselves in Place of Plaintiff.—It is improper in an action for damages for the loss of an eye for counsel for plaintiff to ask the jury what one of them would take for the loss of an eye. 23. Arguments of Counsel—Necessity of Objection and Exception. —Where no objection is made or exception taken to remarks of counsel, they cannot be made a ground for reversal upon appeal. 24. Arguments of Counsel—Time of Objection and Exception.— Objection to argument of counsel, to be available on appeal, should have been made at the time the argument was made, and certainly before the verdict was rendered. 25. Appeal and Error—Exceptions and Objections—Necessity.— The jurisdiction of the Supreme Court of Appeals is in the main appellate, and when acting in that capacity it does not search the record to ascertain if any error may perchance have inadvertently crept into it, but. it reviews the rulings and judgments of trial courts on matters brought to their attention, and decided by them. 26. Arguments of Counsel—Retraction by Counsel.—In an action for personal injuries, counsel for plaintiff in his opening argument stated that defendant would attempt to escape liability by the worn-out doctrine of contributory negligence, and stated that, were .the accident to happen now, no such defense would be permitted. Upon objection the court directed counsel not to use that statement, and said that he seemed to have confused the contributory negligence doctrine with the fellow servant doctrine as applicable to actions against common carriers. Counsel for plaintiff -said that he had done so and withdrew the statement. Held: That, in view of the ruling of the trial court and the withdrawal of the remark, defendant could not have been injured. 27. Arguments of Counsel—Action for Personal Injuries—Ar- ' raignment of Class Against Class.—In an action by a servant against his master for personal injuries, an arraignment of class against class, of labor against capital, of persons against corporations by counsel for plaintiff in his argument is highly prejudicial to the defendant. 28. Arguments of Counsel—Latitude Allowed Counsel.—Considerable latitude must be allowed counsel in argument, and in the ordinary case the discretion and judgment of the trial court ought to be and are decisive of questions of this kind. 29. Appeal and Error—Arguments of Counsel—Reversal.—A judgment ought not to be reversed for the admission of evidence or for a statement, of counsel which the court afterwards directs the jury to disregard unless there is a manifest probability that the evidence or statement has been prejudicial to the adverse party. 30. Appeal and Error—Arguments of Counsel—Reversal.—There ' are cases where improper statements of counsel cannot be overcome by a subsequent direction to the jury to disregard them. 31. Damages—Personal Injuries—Measure of Damages.—There is no rule of law fixing the measure of damages in personal injury eases. That is a matter to be left to the sound discretion and judgment of an impartial jury, whose verdict will not be disturbed unless it appears that they have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. 32. Damages—Personal Injuries—Average Judgments of Other Courts.—It would seem that the average judgments of the courts of last resort in the different States as to what sum would be a fair compensation for the loss of an eye under ordinary conditions would furnish some aid to juries and courts in ascertaining what compensation should be made therefor. Such average judgments should not be taken as a fixed ad-measurement of the damages to he awarded in any given case, but, if there are no peculiar circumstances in the case to take it out of the general rule, it should be regarded as so far sug- . gestive that any radical departure therefrom should cause the court to closely scrutinize the proceedings to ascertain if the jury have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. .33. Damages—Personal Injuries—Loss of Eye—Case at Barr.—In the instant case plaintiff was an unskilled workman about twenty-one years of age, earning $14 per week. There was no peculiar circumstances attending his case; no matter of aggravation. His sole incapacity was the loss of one eye. Held: That a verdict of $15,000 was excessive and would be reduced to $10,000. 34. Remittitur—Supreme Court of Appeals—Damages for Personal Injuries.—In an action for personal injuries the Supreme Court of Appeals having determined that no error was committed in fixing liability upon defendant for plaintiff’s injury, but that the verdict was excessive, if the case were remanded to the trial court it would be solely for the purpose of assessing the damages. But when the Supreme Court of Appeals is in as good- condition to do that as a jury would be, the remand is unnecessary. 35. Damages—Personal Injuries—Increase in Cost of Living.—The increase in the cost of living is a legitimate item to be taken into account in fixing the compensation to be made for personal injuries.