ARNALL MILLS v. SMALLWOOD, 68 F.2d 57

SIBLEY, Circuit Judge. The appellee, a fifteen year old girl employed by appellant in its cutting and folding room, in off hours sometimes assisted her father in the weaving room, desiring to learn to be a weaver. While so occupied, the shuttle escaped from the loom operated by her father and put out her eye. She sought compensation under the Georgia Workmen’s Compensation Law (Laws 1920, p. 167, as amended), but was held not to have been an apprentice or otherwise under that law, and she then sued at common law alleging negligence, and recovered a verdict.

She and her father testified that she was in the weaving room with the knowledge and by the consent of the overseer and the superintendent. They denied it, and together with the president testified that they wished no- more weavers, and specially did not wish women as weavers. Otherwise there was no substantial conflict in the testimony regarding the occurrence. In trials at law in Georgia, the issues are confined to those made by the pleadings. Recovery can be had only on the grounds of negligence alleged. Augusta Railway & Electric Co. v. Weekly, 124 Ga. 384, 52 S. E. 444; Atlanta Life Insurance Co. v.

Jackson, 34 Ga. App. 555, 130 S. E. 378; Citizens’ Bank v. Valdosta Mill & El. Co., 34 Ga. App. 713, 131 S. E. 126. To those grounds of negligence only are the attention and the evidence of the parties directed. The original petition here alleged that the loom was negligently in bad condition in that the picker stick which throws the shuttle from side to side was warped, crooked, and out of line, causing the shuttle to fly out.

During the trial, it ap>peared that the picker sticks on the loom in question were not at fault, and the petition was amended to allege fault in the picker, a leather and steel instrument which actuates the shuttle, and that the shuttle box on the left side in which the picker operated was worn and loose and out of alignment, and that an inspection would have disclosed it, and the failure to inspect and repair was negligence.

The court considered that appellee was at most a permittee on the premises for her own ends and not an invitee on any business of the company, so that there would be no liability for the mere bad condition of the premises and machinery, but only for conduct causing danger to her done or continued after she was known to be there, sometimes called “active negligence.” Pearson v. Mallory S. S. Co. (C. C. A.) 278 F. 175, 176; Rawlins v. Pickren, 45 Ga. App. 261, 164 S. E. 223; Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375, 126 S. E. 273.

To escape the direction of a verdict against her for want of “active negligence,” she again amended to allege that there had been inspection and repair of the loom that morning, the left-hand shuttle box being found out of alignment, and that it had been improperly fixed by putting cardboard between the box and the loom frame, both of iron, the cardboard being liable to be thrown out or to be mashed so that the box would soon* come out of line again, would misdirect the course of the shuttle, and cause it to fly out as it did.

She also alleged the box was not true, and that she was not warned of its dangerous condition., The evidence showed tha-t shuttles come out of looms not infrequently, but usually do not fly out, because checked by a guard which arrests them.

Several things may cause it, there being mentioned a want of alignment or looseness of the shuttle boxes which, like gun barrels, direct the shuttle, a bolt or screw sticking up which may deflect it, a broken thread in the warp, or a roughness in the filling thread carried by the shuttle which may trip it, or some defect in the harness which controls the threads of the warp, or a faulty starting of the loom. One witness for the plaintiff said there were a hundred causes. This loom several hours before the injury began to shoot the spindle awry, stopping automatically, as it should do.

The loom fixer discovered that the left box was out -of line and put a cardboard liner under one end and tightened the bolt down so as to bring it in line. It is testified without contradiction that this is a usual, accepted, and effectual way of aligning boxes. The loom ran perfectly after-wards till in the afternoon, when it stopped because the filling thread in it broke.

Appellee’s father rethreaded the shuttle, put it in the right-hand box and started the loom, when the shuttle returning from the left-hand box jumped through the warp threads about the center of the loom, struck the guard, and escaped under it to strike appellee. She and her father say nothing appeared to be the matter with the loom, that he started it up properly, but that the shuttle should not have come out unless something was wrong'. The course of the shuttle was afterwards traced by the thread which remained unbroken.

The loom fixer, the overseer, and another weaver testify that the shuttle was replaced, the loom carefully examined, nothing found wrong with it, the box bad not become loose or out of line; that the loom was started again without any adjustment or repair, and ran perfectly afterwards. The uneomtradieted, unimpeached, and not incredible testimony of these three witnesses demands a finding that there was nothing wrong with the box or its alignment and that it was not left in a dangerous state that morning.

If it had become so out of alignment as to direct the shuttle up so as to pass through the work midway across the loom, it would afterwards have frequently failed to drive it into the opposite box. The shuttle may have been improperly placed in the loom, its filling thread may in some way have jerked it, or something may have fallen into the loom to deilect it, or there may have been an unaccountable accident; but it cannot have been due as alleged to a loose or unaligned or untrue box if these witnesses speak true.

Their testimony is candid, clear, and reasonable, and unopposed by other witnesses or by circumstances which are irreconcilable with it. They are not impeached by any of the modes known to the law. Their evidence cannot be disregarded just because they,are employees of the mill. Chesapeake & Ohio R. Co. v. Martin, 283 U. S. 214, 51 S. Ct. 453, 75 L. Ed. 983; Georgia R. & Banking Co. v. Wall, 80 Ga. 202, 7 S. E. 639; Western & Atlantic R. Co. v. Beason, 112 Ga. 553, 37 S. E. 863.

Employment or other relationship of a witness may be considered on the point of his credibility in weighing his against opposing evidence, but is not by itself a sufficient reason for disregarding his testimony. Although the circumstances may support the inference of a fact, if it is shown by direct unimpeached, uncontradieted, and reasonable testimony which is consistent with the circumstances that the fact does not exist, no lawful finding can be made of its existence. Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391, 77 L. Ed. 819; Winn v. Consolidated Coach Corporation (C. C.

A.) 65 F.(2d) 256; Frazier v. Georgia Railroad & Banking Co., 108 Ga. 807, 33 S. E. 996; Penn Mutual Life Ins. Co. v. Blount, 39 Ga. App. 429, 147 S. E. 768; Neill v. Hill, 32 Ga. App. 382, 123 S. E. 30. On the issue of negligence as made by the pleadings, the motion for a directed verdict ought to have been granted.

Exception is taken to the charge of the court as follows: “Evidence has been introduced by the plaintiff in this ease tending to show that the offending loom was wholly in the control and care of the defendant, that no one else had meddled with it and that the occurrence was such as ordinarily would not happen without negligence on the part of the owner or custodian of the instrument and that such accident could not have happened if such loom had been in good repair.

These are circumstances which you may consider along with all the other evidence in the case and if you find by a preponderance of the evidence that the manner of the occurrence arid the circumstances are of such character that would in your judgment authorize an inference that the occurrence could not have taken place if due diligence had been exercised by the defendant, you would be authorized to make such an inference though you are not required to do so by law.” The case pleaded was not one of res ipsa loquitur, such as is described in the first part of the quoted charge, in which the plaintiff may, because he does not know just what negligence caused his injury, put the burden of explanation on the defendant.

Blanton v. Great Atlantic & Pacific Tea Co. (C. C. A.) 61 F.(2d) 427. The pleader here assumed to know and alleged the defects in the loom. Though the existence of those particular defects could of course be established by circumstantial evidence, the ease cannot be opened to inferences of other defects than those alleged by application of the principle of res ipsa loquitur. King v. Davis, 54 App. D. C. 239, 296 F. 986, 987-989. See Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43, 102 S. E. 542; Bonita Theatre v. Bridges, 31 Ga. App. 798, 122 S. E. 255.

Though in its ending the qnot-ed charge does not say so, it is calculated to give the jury the impression that, if they thought the occurrence could not have taken place if due diligence had been exercised by the defendant, they might find for the plaintiff, irrespective of whether the negligence so inferred was that alleged in the amended petition. If on other' allegations or other evidence the ease should again go to the jury, so ambiguous an instruction would best be omitted. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.