Summary
In Cotton Mills Products Co. v. Oliver, 153 Miss. 362, 121 So. 111, (1929), the Court said that it knew that the purchasing power of a dollar, since World War I, had been reduced about 50% of its prior value.
Summary of this case from Brown-Miller Co. v. HowellOpinion
No. 27414.
March 11, 1929.
1. MASTER AND SERVANT. Employer's negligence in not furnishing suitable appliances to oil spinning frame held for jury.
In action by employee against employer for injuries sustained while employee was oiling spinning frame in cotton mill, question, whether employer was negligent in failing to furnish suitable oil cans and in failing to make safe the place where employee was required to work, in that spinning frame employee was required to oil was not kept equipped with device known as oil spout, held for jury.
2. TRIAL. In action for injuries sustained while oiling machinery, where jury viewed scene, refusal to permit employer to give practical demonstration of proper method of oiling held not error.
In action by employee against employer for injuries sustained by employee while oiling machinery, where jury repaired to mill to view scene, refusal to permit employer to give practical demonstration at mill of proper method of oiling machinery held not error, where proof showed that employee performing duty some five thousand times a day had been able to do so without serious mishap until occasion of injury.
3. DAMAGES. Twelve thousand five hundred dollars to man thirty-four years old for loss of one eye and impairment of other eye held not excessive.
Twelve thousand five hundred dollars to man thirty-four years of age, earning two dollars per day, for injury necessitating removal of eye and causing intense and continuous pain for thirty hours from time of accident to time of removal of eye, and also materially affecting the other eye held not excessive.
APPEAL from circuit court of Yazoo county, HON.W.H. POTTER, Judge.
Bratton, Bratton Dailey and Holmes Holmes, for appellant.
The legal principle is too well established to admit of argument that appellant was not required to furnish the newest, safest, and best machinery, appliances, and places for work, but that its obligation was met when it furnished such as were reasonably safe and suitable for the purposes in view, or when it furnished such as were in ordinary and common use by others in the same business. "The master is not required to furnish the newest, safest, and best machinery, appliances and place for work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view." 39 C.J. 329. The principle that a master has met the requirement when he furnishes appliances and places of work of a kind in general use by businesses of like kind is recognized by this court in the following cases: Jones v. Y. M.V.R.R. Co., 90 Miss. 547; Kent v. R.R. Co., 77 Miss. 494; Hatter v. I.C.R.R. Co., 69 Miss. 642. We submit with confidence that the evidence in this case is undisputed that it was not usual or customary or a matter of general use for well-regulated cotton mills to equip the Howard Bulloch frames with the tube or oil spout at the foot end thereof where the pulley is attached to the foot end of the frame.
The only other alleged ground of negligence upon which the appellee stands is that the appellant failed to furnish the appellee with an oil can with a spout sufficiently long to perform his duties as oiler. The proof conclusively demonstrates without a shadow of doubt that oil cans of the character identified in evidence as having an eight or nine-inch spout were provided by appellant in the spinning room for the use of the appellee. The state of the record, therefore, justifies this court in saying beyond doubt that the appellant provided oil cans of the kind that appellee stated he could have used with perfect safety even in the exercise of ordinary care.
The trial court erred in refusing to permit appellant to demonstrate manner of oiling spinning frame. We recognize the fact that it was a matter of discretion on the part of the trial judge to permit, or not to permit, the view by the jury. We submit, however, that the matter of demonstrating the manner in which the spinning frame in question could be oiled with an oil can in the absence of the oil spout, was a matter of evidence, which was either competent, or incompetent. If this was competent evidence in the court room, then it was competent on the occasion of the jury's visit to the mill, since the court had already exercised its discretion to permit the jury to visit the mill, and on such visit the court was organized and in session at the scene. It was not a matter of discretion with the court, therefore, to admit or reject this competent evidence. It was vital to the appellant's contention to show to the jury the manner in which the spinning frame in question was required to be oiled by it. The best and most direct proof of this issue was to show the actual oiling of the machine in the manner in which the appellant required it to be oiled. As stated above, had a life size model of the spinning frame been actually produced in court, and evidence offered to show how the appellant required the same to be oiled, there can be no doubt about the fact that the competency of such evidence would have been recognized, and the trial court would have admitted it. If it was admissible in the court room, then it was admissible on the scene, after the court had exercised its discretion to permit the jury to visit the scene, since on the occasion of such visit the court was there organized and in session.
Even though it be contended that it was a matter which addressed itself to the discretion of the court, we respectfully submit that under the circumstances of this case the failure of the court to permit it was an abuse of its discretion. The jury, drawn in the ordinary way, from all walks of life, unacquainted with machinery, were permitted to go into the spinning room of the cotton mill where belts and pulleys were revolving about them on all sides, amidst the noise and confusion of running machinery. Such was calculated to impress them with dangers incident to work about machinery which are not felt to exist by those who are familiar and experienced with machinery. In taking the jury to this scene, and in the midst of all of this machinery, it was particularly vital to the contention of appellant that they have the opportunity to actually view the oiling of the frame in operation in order that they might see the freedom of danger therefrom, and in order that they might not conjecture imaginary dangers incident thereto.
The verdict is grossly excessive. The proof shows that the appellee is a man thirty-four years of age, and was earning at the time of his injury two dollars per day. We have a young man of about the age of thirty-four years who was earning the wages of an ordinary laborer, viz., two dollars per day, who has lost his right eye, and who suffered extreme pain for a few days following the injury, with no reasonably certain evidence in the record that the vision of the left eye will be permanently affected. He was awarded a verdict for twelve thousand five hundred dollars which, if invested, at the usual rate of interest of six per cent per annum would net him seven hundred fifty dollars per year for the remainder of his life, and would leave his principal still intact. In other words, the amount awarded by the jury if invested as aforesaid, will net him one hundred fifty dollars more per year than he was earning at the time of his injury, and will still leave his principal intact. Before discussing the elements of damage which the jury were justified in taking into consideration, it might be well to eliminate those things which are not elements of damage, but which, judging from the size of the verdict and the nature of the case, the jury took into consideration:
First. Disfigurement occasioned by the loss of appellee's eye is not an element of damage which the jury were justified in taking into consideration. By reference to the record wherein counsel for appellee refers to the bloody socket of appellee's eye, it might be well assumed that throughout the trial and argument of this case the bias and prejudice of the jury were inflamed by this disfigurement of the appellee. Second. The probability of defective vision in the left eye can likewise not be considered an element of damage in the absence of proof thereof with reasonable certainty. I.C. Ry. Co. v. Williams, 144 Miss. 804, 110 So. 510. Third. Neither can appellee's damages be estimated by considering what one individual or another would take for his eye, yet it may not be amiss to say that in the argument in this case before the jury such a measure of damages was prescribed for the jury. Such measure, however, is wholly erroneous. Heddles v. Chicago, etc., Ry. Co., 74 Wis. 239, 42 N.W. 237.
From a standpoint of common sense we know that the earning capacity of a common laborer could not be materially reduced by the loss of an eye in the absence of any showing that the other eye was materially affected thereby. Certainly, it could not be said that the earning capacity of this appellee who was earning the wages of a common laborer was reduced by the loss of his eye more than thirty-three and one-third per cent. He was earning at the time of his injury not exceeding six hundred dollars per year, and if thirty-five hundred dollars were awarded him to compensate him for the loss of his earning capacity, such an amount invested at the usual rate of six per cent per annum would net him two hundred ten dollars per year for the remainder of his life and leave his principal intact, and this amount on the basis of his earning capacity at the time of his injury would more than compensate him for a reduction of thirty-three and one-third per cent in his earning capacity. That such method of computation meets the approval of this court appears from the case of I.C.R.R. Co. v. Williams, 144 Miss. 804, 110 So. 510. In Alabama, the maximum amount allowed, including medical attention, is one thousand three hundred dollars; in Louisiana, two thousand two hundred dollars; in Missouri two thousand two hundred sixty dollars; in Tennessee, one thousand seven hundred dollars; in Georgia, one thousand six hundred dollars. We realize, of course, that the citation of these various compensation laws of the different states is in no manner controlling in arriving at the amount to be awarded the appellee in this case, but they show the values which are placed upon an injury resulting in the loss of an eye under these compensation laws. They are, however, persuasive of the fact that a verdict of twelve thousand five hundred dollars under the evidence in the case at bar is so grossly excessive as to be unconscionable. While it is true that there is no fixed guide in arriving at the amount of damages to be awarded for an injury such as the appellee has sustained, yet the average judgments of the courts of last resort in the different states as to what sum would be fair compensation for the loss of an eye under ordinary conditions, ought to furnish some aid to a court in ascertaining what compensation should be made therefor. One of the most exhaustive discussions to be found in the books on the fair compensation to be awarded for the loss of an eye is to be found in P. Lorillard Co., Inc., v. Clay, 104 S.E. (Va.), 384, where the court refers to a compilation of eighteen verdicts for the loss of an eye which have met the approval of the appellate courts of the states in which they were rendered. In Johnson v. Pickering Land Timber Co. (La.), 61 So. 514, the plaintiff, who was a minor, described his injuries as follows: "I got my eye knocked out and a hole in the side of my face, and one of my hands was hurt, and two places in my side and one of my arms." The plaintiff was awarded damages in the sum of six thousand dollars and in answer to a prayer that the judgment be increased, the court said: "The young man's wounds, apart from that to the eye, were not painful, and have left no permanent trace. However, one eye is gone, and the orbital cavity so injured as not to allow of the use of an artificial eye to avoid disfigurement; and the remaining eye was still more or less affected at the trial of the suit, thirteen months after the accident. The young man's sufferings were very great. The jury allowed six thousand dollars damages. There is a prayer that the judgment in this case be increased; but the court sees no reason for granting that request." Contrast the case of this plaintiff with the case of appellee at bar, who was awarded a verdict of twelve thousand five hundred dollars. In Miller v. Southern Bell Telephone Co., 70 So. (Ala.), 730, it is stated that the courts of Alabama have quoted and followed the rule of the supreme court of Mississippi for setting aside verdicts of juries and warding new trials in tort cases on account of verdicts being excessive and inadequate. In that case the plaintiff was injured by a falling telephone pole. He was rendered unconscious and remained so for several hours. He suffered the loss of an eye, his hearing was impaired, and he was rendered less able to carry on his business, and his earning capacity was reduced. At the time of the injury he was earning from five thousand dollars to thirty thousand dollars per year. A verdict for two thousand was awarded him, and a motion was made to set it aside on the ground that it was wholly inadequate. It was held by a majority of the court that a verdict for two thousand dollars was not so inadequate as to indicate that the jury was influenced by malice, prejudice, or improper motive. Compare the injuries of the plaintiff in this case and his earning capacity with the injuries of the appellee and his earning capacity, and contrast the verdicts rendered to each. In DeLaVergne Refrigerator Machiner Co. v. Stahl, 60 S.W. (Tex.), 319, the plaintiff was a young man twenty-four years of age. He suffered the loss of an eye. A verdict for eight thousand dollars was awarded. The court said: "The loss of an eye is a serious injury, but we consider eight thousand dollars as excessive under the evidence in this record, and shall affirm the judgment if a remittitur of one thousand dollars be filed within ten days, otherwise it will be reversed and the cause remanded." See, also, Haynes v. Maine Central R.R. Co., 80 Atl. (Me.) 38; Olwell v. Skobis, 126 Wis. 308, 104 N.W. 777; Western Electric Co. v. Prochaska, 129 Ill. App. 589; Morris v. Hines, 107 Neb. 788, 187 N.W. 130.
Such an award of damages in the case disclosed by this record was manifestly prompted by bias and prejudice on the part of the jury, and it might be well assumed that they were moved not only by considerations of appellee's disfigurement, but by the erroneous measure as to what they themselves would be willing to take for an eye. Certainly, when the fair and reasonable reduction of the appellee's earning capacity resulting from the loss of his eye is considered, the award in this case for his pain and suffering is so grossly excessive as that no court would permit it to stand. It is true, of course, that it is a delicate thing to measure pain and suffering, and that such is largely the province of the jury, but appellate courts are frequently called upon to, and do protect defendants from exhorbitant verdicts which are born of the bias and prejudice of the jury, due, not to corrupt motives on the part of the jury, but to their inflamed sympathies in behalf of the plaintiff.
Barbour Henry, for appellee.
That there was negligence in failing to maintain the simple device of the oil spout which was on the frame when it was manufactured and which, according to the clear preponderance of the testimony continued there and to be used on some of the frames in the mill up to a few months before plaintiff's employment, does not admit of argument. It is equally clear that a question of fact was raised in two particulars. They are, first, whether such device has been abandoned by well-regulated mills, and, second, whether or not the device was placed on the frame for purpose of protection or as a mere convenience in the event the end of the creel is switched to the other end or closed end of the frame. Plaintiff's proof clearly demonstrates that the device was placed on the frame as a simple and adequate protection to employees engaged as plaintiff was. The proof shows the device on the frame when installed and its continued use, with intervals of negligent failure, up to a few months prior to plaintiff's injury. Every expert witness for the plaintiff and the expert offered by the defendant, testified that these devices were put on the frame for purposes of protection, and they demonstrated, and the jury saw, that there was no other reason for them to be there. It is argued by the appellant that the proof conclusively shows that a nine-inch oil can was furnished the appellant, and that it was perfectly safe to do the work with that oil can, in the absence of the oil spout. A sharper and clearer conflict could hardly be raised as to whether or not a four and one-half or five-inch oil can, or a nine-inch oil can has been furnished. That the short oil can was the only one furnished was testified to unequivocally by the appellant. It is true that several witnesses testified to the contrary, but the jury elected to accept as true the testimony offered by the appellee, because it was reasonable and supported by the production of the very oil can, bent as a result of the contract with the metal buckle, before the jury.
Appellant has much to say about the harmful result of the refusal of the judge to permit a demonstration by an experienced oiler of the manner in which such oiler could have oiled the bearing in question in the absence of the oil spout with which the frame was originally equipped, and which was used at the mill until a comparatively short time before plaintiff was injured. There are five clear and conclusive reasons why the action of the judge in this respect was proper. First, the statute, as construed by this court, did not contemplate any such action when viewing the scene. Second, it was entirely a matter of discretion whether the scene, including the machinery, be viewed. Third, the record shows a complete inspection of the machinery, including the place to be oiled, both while still and when operating. Fourth, such a demonstration would have been unfair and partial to the defendant. Fifth, the request was properly overruled, as it was premature until plaintiff had made out his case, and was never renewed thereafter.
It will appear, by a reading of the statute that the purpose was to "view and inspect" the place or thing, and not to make "demonstrations" by experienced men, or engage in a controversy there instead of the orderly method of introducing proof, as was done in this case when the jury and court returned to the court room. The purpose of the statute was to allow the court and jury to view or see this complicated machinery, and when the witnesses explained the operation and the manner in which the injury occurred, a better understanding would follow. This statute was very recently carefully considered by this court in Jones v. State, 141 Miss. 894, and it was then held that, being in derogation of the common law, the rule strictissimi juris must be applied, when so applied, and, as held in that case "this statute must be devoted to the explanation of the scene, location of distances, and such testimony as tends to make a complete map of the situation." The discretion in two particulars is vested in the court. In the first place, it is a matter of discretion whether the court will "enter an order providing for such view or inspection as is hereinbelow directed." In the second place, having permitted the "view and inspection," with the whole court present, and the scene or thing "pointed out and explained to the court and jury by the witnesses" then it is left entirely in the discretion of the court whether there shall be any questioning of the witnesses by the court or the representatives of the litigants. It is manifest that it would have been unfair to the plaintiff to have permitted a demonstration such as defendant desired. The proof shows the plaintiff was injured while about the business in the ordinary performance of oiling one of the several thousand places he was required to oil each day, as discussed heretofore in this brief, requiring, as the testimony shows, constant movement and entire attention for eleven hours a day. Plaintiff was injured while about the work in the ordinary way, and it would have been unfair for an experienced man, all set and on guard, to be put to the task to show how the bearing "could" have been oiled without the use of the spout. It is not an issue that such could be done. It is undisputed that such was done, but it was also in evidence that there was a simple device on the frame which would have removed the danger, and the producing cause of plaintiff's injury.
The appellant argues strenuously that the recovery of twelve thousand five hundred dollars is so grossly excessive that it should be reduced. There are several considerations entering into the amount of the recovery. They are: First: The increased earning capacity of the individual and the decreased buying power of money, or its cheapness, is recognized by all the courts, making verdicts much larger, as all commodities increase in value. Second: The verdict will only be reduced if grossly excessive, and the opportunities of the jury and trial judge must be considered very carefully. Third: The physical pain and suffering for such an injury is difficult to determine, and the jury can weigh it as accurately as the court. It was aptly said by the Minnesota supreme court, in Quinn v. Chicago R.R. Co., 202 N.W. 275, decided in 1925, in affirming a verdict for sixteen thousand dollars for an injury much less severe than the one to appellee: "In recent years there has been a noticeable increase in the size of the verdicts in personal injury cases. The courts approve of verdicts to-day which would have been unhesitatingly set aside as excessive ten or fifteen years ago. Measured in money, the earning capacity of most men has increased; measured by its purchasing power, the value of a dollar has decreased. No immediate change in the situation is in sight. It is only right that these well-known facts should be taken into consideration." In Lorillard v. Clay, 104 S.E. 384, the Virginia court, in finding that the average of verdicts for the loss of an eye fifteen or more years ago was five thousand four hundred twenty-four dollars, said that the cost of living "in many respects has more than doubled," and this was its reason for allowing ten thousand dollars for such an injury occurring in 1917. See, also, Hurst v. Chicago R.R. Co., 219 S.W. 566.
It is settled by the decisions of this court that there will be no reduction of a verdict, which has been approved by the trial court, even though it may appear large, or even excessive, and is for a sum greater than this court would have awarded. It is only if the judgment is for a sum that appears to be grossly excessive. I. V.R.R. Co. v. McGee, 117 Miss. 370. Appellant relies chiefly upon and suggests the case of Lorillard Co. v. Clay, 104 S.E. 384, as containing "one of the most exhaustive discussions to be found in the books on the fair compensation to be awarded for the loss of an eye." We fail to find where appellant gets any comfort from the decision. The language of the supreme court of Minnesota, in the Quinn case, supra, that "the courts approve of verdicts today which would have been unhesitatingly set aside as excessive ten or fifteen years ago" when the Lorillard injury occurred, is forceful here, and makes it reasonably certain the Virginia court would not have disturbed the fifteen thousand dollar verdict in 1928. This court knows that the sum of twelve thousand five hundred dollars in 1928 has the equivalent purchasing power in 1917 of less than six thousand dollars. Again the opinion in the Lorillard case cites several cases showing the loss of one eye, which, on the theory now being considered, are quite illuminating. The court then says the average of these cases is five thousand four hundred twenty-four dollars. It should be observed that every decision from which this average is reached was decided prior to 1914, and some as early as 1900. Taking five of the states cited, and the only ones passing on the recovery in this kind of injury, since the Lorillard case was decided (Michigan, Iowa, Oklahoma, Texas, Missouri) and since the present low purchasing power of money was established, the average is fourteen thousand dollars, as against the average of all the courts mentioned by the Virginia court in 1920 of five thousand four hundred twenty-four dollars.
Argued orally by J.G. Holmes, for appellant, and J.F. Barbour, for appellee.
Appellee, A.L. Oliver, sued the appellant, Cotton Mill Products Company, for damages for the loss of his right eye while he was employed at the appellant company in Yazoo City.
The declaration in this case contained four counts, on two of which there were peremptory instructions, and, on the other two, the court below submitted to the jury the question of negligence on the part of the appellant. In one of the counts it was charged that the appellant negligently failed to furnish the appellee with reasonably proper and suitable oil cans or other apparatus with which to oil the machinery in the spinning room, the oiling of which machinery was the duty required of him and in the performance of which he was engaged at the time he received the injury. The other count alleged that the appellant failed to exercise reasonable care in the matter of making safe the place whereat the appellee was required to work, in that the Howard Bullock spinning frame which he was required to oil was not kept equipped with a certain device known as an "oil spout" or "oil snout," in which to place the oil so as to remove the necessity for the appellee, in performing his duty, to come in dangerously close proximity to the rapidly moving belts and pulleys which propelled the spinning frame.
Upon the submission of the case to the jury, a verdict was returned for twelve thousand five hundred dollars and a judgment entered by the court accordingly. From this judgment appellant appeals.
We shall not undertake to detail all the evidence in the case, but only what we conceive to be the essential facts.
The appellee was employed in the spinning room of the appellant company in which were operated twenty-four Howard Bullock spinning frames, six Whiting frames, and six Fails Jenks frames, or a total of thirty-six spinning frames. These frames were all propelled by pulleys which extended from overhead shafts to shafts on each of the frames, both shafts having pulleys thereon which were operated by bands; and, in order to spin cotton, it was necessary that these pulleys be revolved at a very high rate of speed. The cotton frames were orderly arranged in the spinning room, each frame having a double row of spindles, and between the frames were alleys about sixteen inches wide, along which the appellee and those who dealt with the machinery passed in the performance of their duties. The pulleys came down from the overhead shaft to the shafts attached to the frame, as stated above; and the pulley nearest to the frame at which the appellee was injured was known as the "fast pulley," which propelled the frame, and the pulley furthest from it, and only a few inches apart, was the "slow pulley," which permitted the machine to stop motion when, by the use of a shifter, the belt was thrown upon that pulley. It was the duty of the appellee to oil the bearing just in the frame, about six to eight inches from the fast revolving pulley.
The "snout" which had been attached to the machine originally was a small, hollow pipe with an opening in the creel or table of the frame — the creel being the body of the frame — running down to and into the bearing, and it had been allowed to be taken from the machine. In oiling the machinery, it was necessary for the oiler to insert the oil can opposite the pulley and pour the oil from the can with the four and one-half-inch spout directly into the oil cup. It was contended that, had the oil snout been attached to the creel of the frame the oiler would have been able to stand erect when pouring the oil in at the top of the creel or table, and that he would not have had to put his hand close to the machinery, in close proximity to the rapidly moving belt, and that the oiling of the machinery could have been carried out without the risk of appellee having his hand or face in close proximity to this rapidly moving belt.
It was contended also that, even though the "snouts" were missing from the machine, by using an oil can with a nine-inch spout, the risk from having his face and hands in close proximity to the revolving machine belt would have been obviated.
Appellee's evidence tended to show that the safe and proper way to oil the machine was by using an oil can with a nine-inch spout from the rear of the pulleys; and also that this process could be followed safely and properly by shifting the belt to the slow pulley. The evidence on behalf of appellant tended to show that the proper and safe way of oiling the machinery was between the belts from the side.
Appellee testified, and his proof tended to show, that he was oiling the machinery in the manner directed by his foreman; that he had been employed perhaps two months as oiler; and that he had been instructed not to oil from the side, because the oil would fall on the pulley, causing the belt to slip, and thereby produce trouble in the operation of the machine. He also stated that he used an oil can with a four and one-half-inch spout in doing the oiling, and that it was furnished to him by his foreman. Appellant contended that they furnished oil cans with nine-inch spouts, and that one was found in the oil room about an hour after appellee was injured.
The evidence showed that an oiler performed on an average five thousand oilings a day. The appellee was injured while oiling the machinery, in performing which act he occupied a stooping position; and the oil can in his hand, coming in contact with the rapidly revolving belt, was hurled from his hand, and the sharp point of the spout pierced his right eye. As a result of this accident great pain was endured by him for about thirty hours, or until his eye was removed.
Appellee testified that he continued to suffer until the trial of this case, some months after the injury, and that his left eye was affected in that its vision was impaired, and that the vision of his left eye had not since improved. Appellee was an able-bodied man, thirty-four years of age, and earning two dollars per day.
The appellant and a number of witnesses in its behalf stated that they had seen Howard Bullock spinning frames operated in other cotton mills throughout this country, and that this snout was not in use in well-regulated cotton mills, assigning as a reason therefor that cotton would get into this small pipe and clog it, thereby rendering it difficult to oil the bearings.
The evidence of the appellee tended to show that these particular snouts on these machines had been in operation from the time of installation, a quarter of a century ago, and that some were in operation at the time of the trial. The oil can which appellee stated that he was using at the time of the injury is exhibited as evidence here, also the oil can with the nine-inch spout, contended by appellant to have been sent to the mill for use just before the injury occurred.
There was a sharp issue of fact as to whether or not appellee was required to use the short-spouted oil can; also as to whether or not the oil snout was a proper equipment on the Howard Bullock spinning frame, and as to whether the proper method of oiling this frame was from the side or rear. The jury visited the cotton mill and saw the machinery in operation where Oliver was injured.
In its assignments of error, appellant contends, first, that it was entitled to a peremptory instruction in this case. A careful study of this record convinces us that on the two counts of the declaration, to which we have adverted, the court correctly submitted the issues of fact raised thereon to the jury. As to the use of oil snouts in other mills, this testimony is not conclusive. The issue is whether or not appellee had a safe place in which to work; that is, whether appellee standing in a narrow alley between rapidly moving machinery, not equipped with an oil snout (costing thirty-five cents each) and with a short-spouted oil can with which to oil the bearings, could safely perform his duties. We think this is a question of fact for the jury to decide — whether or not a reasonably prudent man would provide such instrumentalities in such a place. It is not for us to substitute our opinion for that of the jury, where there is an issue of fact. We will say further, there were more witnesses who testified in behalf of appellant's theory of the case than in behalf of appellee's; but the jury saw and heard the witnesses, and saw the machinery in operation, and we cannot disturb their finding in such situation.
With reference to the second contention in the assignment of errors, at the beginning of appellee's testimony, when it was suggested that the jury repair to the mill to view the scene, appellant requested the court, in advance of this trip to its mill, and before appellee had concluded his testimony, to allow appellant to have a man demonstrate, with an oil can, how the machinery should be oiled. This request for a practical demonstration at the mill was refused by the court, which refusal is assigned as error.
We think it was entirely proper for the court to decline to allow this practical demonstration, for the reason that it was entirely within the discretion of the court to confine the scope of the testimony to the purposes and spirit of the statute, which permits a jury to view the scene; and in this case it would have been unnecessary at any rate, because the proof in this case abundantly shows that the oiler, performing this duty some five thousand times a day, had been able to do so without serious mishap until this occasion. We do not think it would have been fair to the appellee to permit this demonstration to the jury by a person specially prepared for this particular occasion, diverting the mind of the jury from the usual and ordinary way of doing this work from hour to hour, and from day to day; consequently, we think there was no error.
Third. There is some highly technical criticism of an instruction in this case, which we think is without merit; nor would any new principle of law be settled by a discussion thereof; but, conceding that the instruction is subject to criticism, the instructions, as a whole, stated the law of the case fairly for the appellant, and the trial of this case, from the beginning to the end, was most skillfully conducted, and the rights of the appellant were carefully guarded. Therefore, we find no reversible error.
Four. It is insisted that the verdict is excessive in this case, and a splendid brief in this connection has been presented to this court. Counsel cites the case of P. Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384, in which authorities are reviewed, and in which a judgment for fifteen thousand dollars is reduced to ten thousand dollars for the loss of an eye. In this case it was found that the average verdict for the loss of an eye is something over five thousand dollars some verdicts being lower, and some higher than ten thousand dollars. However, the court said, in reducing the judgment, that passion and prejudice could be attributed to the jury for the reason that a very improper argument had been submitted by the appellee's counsel, into which class prejudice had entered, and through which argument ingenious counsel had been permitted to have full sway with the jury.
In the instant case we have no scales with which to delicately weigh the amount of suffering endured by the appellee before the removal of his eye. His suffering must have been intense and continuous for thirty hours. He stated that he continued to endure pain until the date of the trial, and that his other eye was materially affected. The jury saw and heard him, and we cannot say that the verdict is grossly excessive, nor can we say that it reflects passion and prejudice — especially in the light of the fact that this court knows that the purchasing power of a dollar since the World War has been reduced to about fifty per cent of its value prior thereto. In other words, a verdict for twelve thousand five hundred dollars is not more than a verdict for eight thousand dollars prior to 1914.
The case has been fairly tried, and we do not feel that we can disturb this verdict.
Affirmed.