Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-03-06
auion anS Sntar1iltaaa,, a1la i,
6FFrCIAL.

= - ---7-- y = -
1 - 6FFTCIAL.
Opinions ut tSe sUPTense Cen ri Of the stat
I oi Ecnaessec; delivered stt Nashville, .
-,~OecetRSef- nis 1855. --4- i-a = ~~--f-
7 whitley y. Nfiilemlu and otsrr,. -
q l This WAS an action on TIE case, 20 rssOv~r dss
age fer hn Injury 70 the person Of the Plaiutli
Whereby he vas dismembersd Of q limb. Ner5is
i 9Rd judgmeni were reaIsfed for The dsfeBda a.:
fhe Isiury Nes reeeIvcd In 1888, when the piainri
. MAS infant a bat little more hsn three yearse
age; and in 1876, shorty after striving At fall Sge
\ he. trenght Ills action. 7-.- s = --i D. --sl-
n 1Isipiir5 &c HfreH in this way: the Defendant
/ we're eosner5 OF 4 pSpcr mill IN Nashville, on Wste
street, on me bank Of Cumberland river, the ma
chinery d which was propellsi by stesnn.- Con
bectea with d midi 4chiRery hsdbesn nstrue,
ed TO draw up wood rim the river On q truck
i This -corsisfcd eta shaft proceeding from the en-
! ginercom of me mil. and extending Through thG
I wall oi nfi-house. -0n the end Of this shaft
snd outside Of the Wali, seme eight or ten inches
was Hxeda cog>Hheel, -sboHp25 inches 10 diameter
which geaFed iatoGanoiher cog wheel, Ter the
/ purpose of mcFing the truck Tbe wheel Ievolved
from ten TO tEeniy inches from the ground, end
! voskcd upxSrds and outEards. They we're about
70 feel from the street, in open space, entirely
exposed, without any osver, guard. or enclosure
/ Eha'exer ST. ec
lThe plaintiffs mother. lived on tie other side Of
Water street, nearly opposite the paper mil These
Whesls were applied to other pur gOses thsa ruBping
the truck. AM were genera ly in notion. In The
fall OF 1858, at tins when the engineer and most
OF the her hands were absent AZ dinner, leaving
the wheels running, the plaintiff was caught BY
them, aud thrown behind The wheel next TO the
+ val, and his right leg was crushed betWeeh the
knee and anclP that remained attached oaIy By
plrion Of the muscle and skin, and had OF neees'
slty 10 be amplialed The proof shows that the
wheels might hare been boxed 81 3 very tFihing
expense, or an enclosure rtads around them; as
to have been secured against The possibility Of in
jury Is a1y one. ci. -..tf
fEe proof Liz ewise shows, C5at The ''plsintG ana
other cBiidreu played about the mill ALMOST every
day" Il Is proved that the def 5dant, WhitemAn,
who had the sole management Of the IS ablishment,
and who was generally at the mill-Ess careful,
prudent maa
Several OF the d fendants' Witnesses were of
opinion, that there no necessity for boxing or
enclosing the Wheels that there was no reasonable
ground = SppIehend danger from leaving them sx-
posed so ne 4F to the street. as no one could be In
Jur, L by the wheels, unless in getting underneath
them. I. is a so shown, that lhs neighborhood
around the mih al that time, very sparsely Pop>
ula ed ---s-.--- -----i 80 4s---a
The foregoing is the substance Of the proof The
court instrueel the jury, hai they Should look to
all the facts OF The case the soosy and charaeerof
the machinery exposed the manners Of using il; its
lsbiiity TO aJ mischief &c. and ssk themselves the
question, whether, in their opinion man Of or
d.nary sease, prudence and dIligenes having pro
PER regard for the safe CT others would have been
castent TO leave the machinery exposed IS il was,
n. thout apprehension Of nger theEefrom."
For the plaintiff it is insisted thai the ms ruelon
given 10 the jury vas inprOper;snd that the Ver>
diet was contrary both to The lag and evidence.
Ii may be proper to remark al the outset, that 7
The delay CT the plaintiff, FOR . period Of some /
eighteen years to bring suit for the injury received
u, ugh mater, if satisfactorily accounted for,
L.
ia est, msiing the damages, can have no influence
upon.the question ss 10 his ght- to maintain the
action. Lhe plaintiff might have sued by proekEia
ami at any time during minority; or he might de |
cline ding and bring his suit ct any time within
year, amer artivingst age, as he elected to d.
The OH ot,n to the charge is that IL leaSes the
determination OF The Law, as well as the fac Of the
Oase, TO The jury. .....,... II
eads to prove wil if established in the opinion Of
tne jury, satisfy the aIlega.Ons or, the jury must
ind shs fac specisly ami then the court Wrll ap-
Ply the law, aad pronUuoce whether or not the facis
50 found sufficient to support the averments Of
he parties SiaIkie's Ey. 44I. TIE principles Of
an, bY wh eli the jury mus. be goVCrsed in finding
verdiet, cauno: be f. TO thsir arbitrary deter
nil Gtjon. The rights Of pan ties must be decided
lceo. ding 60 the established Law uf the land as
declared by The gisletuIe, or expounded By the
courts; ani MOI according to what the jury, in'h n
)6n Cpiui0n may suppose the law is or ought 10
D.. O.hcrw.se tie Law Eoull be letuating aud
Uncertain as The divers views and Of iuOns Of diff
d6nt juries in regard 20 it. In this view, We think
he caarge is justly exeeptionsble
We are OF opinion IkeEise, that the verdict is
igainst the evidence. Absorbing TO the maxim Of
he common law SIC HtsTo tUo Ut alieaaa non IasSas
very person is liable in Law for the Consequences
Il his own negligence BrOonl's Legal Naxims IAN.
81. of 1854 253 Aud the p Oper criterion for de-
ermiuiug the liability Of the party is. Whether he
las Deen gui ty Of groos negligence, viewing his
,onduct with reference to the caution which pru-
lent man would. under the given circumstances,
rave ObrerVet Id. Where person uses ris own.
property earelessly and neglisently, and without
reasonable degree of care add caution not TO injure
,thers, where injury is likely to eRsUe, he is not
,Dly ciyilly, but in some crminally, RESPONSE
Die for TIE coIsequtnees, And this upon the Trin
;iple that g'Oss disregard Of the interests Of
,thers IS not distiuguishabe, either in point Of
moral guilt, or evil results, from malicious nien-
ion TO injure. Starkie's Ev 526. The cases in
uTpJrt of this general doctrine are very numerous.
n COuPlInd VS. Hardipghsm, s Csmpb. N. p. s7s,
which vas an action en- the case for negligence, in
lot railing or guarding area in front Of dsten-
iant's house, AMI the plaintiff passing by at night
ell inio it and had his arm hrOkea. The defence
vas, that the premises had been in that condition
many years before the defendant went into pos
ssiOn Of them. But Lord Ellenborough held that
h defendant as soon as Ee took possession, Was
Josnd to guard sgainst the danger 70 which the
Jubllo had been before exposed, and that he was
lsble for the consequences Of having neglected to
u so; that the belonged to the house, and it
vas duty which the law cast upon The oeeuper II :
ne house TO reuder il secure The books are full
II cssesin support of-tbis general principle.
In the argement for the defendants, the appiica-
Jili'y Of tins doctrine to the case under eonsdera
ion, rather than its correctness is eoniroverted.
The ground of defence is that the injury Ocea-
,ioIed, not by any negligence or want Of proper
the part Of DEFENDANTS but only by the gross
,eg igeace and Willful m seouduet Of the plaintiff
,im,o f, Who trespasser on defend ants prop
,stys aud whose owa wrongful act was the imne-
ii ,le cause of the injury
II is certainly true, in general that if party by
lis Own gross peggence, brings an injury upon hIa
lelf, or contributes TO such Injury he cannot re-
'OVer. For, If by ordinary Gaze, and prudence, he
might have avoided it, he must he regarded as the
sutLOf of bis own misfortune. BIJL an important
and well established qualification Of this principle
IS, that the mere want Of superior degree Of care
Or diligence, cannot be SET mp as bar to the plain
nf's claim for redress; and that although the
P a ntif may have been guilty Of negligence, yet
1nlsss he might BY the exrrc,se or ordinary care,
have avoided the consequence OF the defendenta
negligence, he will be editlrd 10 recover Lynch /
rs Nurdn, Ad s Ellis n. s. %; Eug. C. L. Rep
vol Al y 422. 6 NJ & W. 24S; % Vermont r 2I4
Il s likewise true, that in eases Of mutual negli.
gen e, where the parties are equally blAmesble,
here can be no recovery. ID 49,
The case of fairfield Roper, 2lst WendeiPs R /
SIS, is reied on by the defeudsns' counsel to ss-
.Ablisa the proposition. that an infant Of tender
years who has received an iDjHry by his oEa gross
negligence, which might haze been avoided by or
iiRa'y 9 tre is much preeluded from recovery as