FURCHES, C. J., and MONTGOMERY, J., dissenting. The plaintiff, who sues by his next friend, testified that when nine years old, one day when his father was absent from home (and he did not return until after the little boy was injured), he went to the factory of the defendant to get work; the foreman offered him twenty-five cents a day, and put him to work "tailing a moulder" and pulling sawdust to the furnace; the next day he tailed the planer, and the next day about 1 o'clock he was put to work on the sander, (637) which is a machine with rollers and sandpaper on the rollers, run by belts; that when he went to work at it a man was running the machine and stood at its front end, and he was at the back end; the man told him to take the planks as they came out of the machine; he worked there an hour and a half before he got hurt; the planks were one foot wide, one and a half feet long and about an inch thick; he had never worked in a factory before and had never seen a sander. He further said that the man in charge of the machine left to go after planks but did not stop the machine; while the man was gone he leaned up against the machine and laid his hand on it, was caught, and his hand was mashed; he "hollered," some one came and raised up the machine; his hand was mashed between the rollers; he had hired himself for three weeks, and told the foreman he was a schoolboy. On cross-examination he said he was then four feet high; he was not instructed about the machine; he did not climb up on the machine, and does not know how his hand touched the wheel; does not know where he put his hand, but didn't think it was where the lumber came out; he knew it would hurt to put his hands on the moving wheels; says he would not have been hurt if he had stood off from the machine; didn't remember what he leaned against the machine for, just never thought of himself, he reckons, and leant up against it; his hand could not get in there unless he put it in there. It was a pretty dangerous place where he was working; the sandpaper on the rollers was going round as fast as it could; don't think he put his hand in, but it couldn't have got in unless he put it in; one roller ran one way and one the other; was standing on his feet when he got hurt; did not get off the floor.
The plaintiff's father testified that he lived on a farm in the country; that he did not hire his son to the defendant, and *Page 453 knew nothing about it; when he got back home his boy was in the bed with his arm dressed; an abscess rose on it; the doctor came to see the boy every day for ten days, and (638) he was in bed for two months, and has suffered greatly.
Another witness testified, who thought that if the boy was only four feet high, he must have climbed upon the machine and stuck his hand in; that there was no danger from leaning against the machine, and it had an iron casting all around it, and there was no danger about the machine unless you put your hand in. This, in substance, is the evidence. The defendant did not offer any evidence, but moved to dismiss upon the evidence of the plaintiff.
During the discussion of the evidence his Honor remarked to the plaintiff's counsel that he had not made out a case unless it was negligence in the defendant to employ the plaintiff at all (to which there is no exception), and submitted the question upon all the evidence and attendant circumstances to the jury, who found that the defendant was negligent and the plaintiff was not guilty of contributory negligence.
The Court charged the jury, at the request of the plaintiff: "If the jury find from the evidence that the plaintiff, at the time of the injury, was a boy nine years and five months of age; that he only had the intelligence of ordinary boys of his age; that he had never seen a machine like the one he was helping to operate until 1 o'clock of the day he was injured; that he did not have the capacity to understand the mechanism of the machine or its dangerous parts; that because of his want of age and experience, and while waiting for the man operating, he threw his arm upon the machine to rest himself, and for the further reason that the defendant's agent who employed him and failed to warn him against danger, then it will be the duty of the jury to consider these matters in passing upon the question as to whether the plaintiff was guilty of such negligence as the law terms `contributory negligence,' which would justify the jury in finding the second issue `Yes.'" The defendant excepted to this, but we find no error. This hypothetical (639) summary was a state of facts which the jury would be justified in finding from the evidence, and it could not be error in telling the jury they should consider that state of facts, if they found them to be facts, in passing upon the second issue.
To none of the other instructions did the defendant except. Whether they were not too favorable in some particulars to the defendant is not before us as the plaintiff is not appealing. The Court gave certain charges at the request of the defendant.
The other prayers for instructions were properly refused. *Page 454 Nor was it error to permit the father to testify that he did not hire his son to the defendant. The complaint alleged that it was negligence to employ a boy of the plaintiff's tender years, lacking in capacity to understand and appreciate the dangers incident to his employment, and unfit by reason of his youth and inexperience, as the defendant well knew, to be set at such work without instructing or cautioning him, though he was wholly ignorant of the dangerous character of the same.
There was evidence strongly tending to prove that state of facts, and the real point in the case is raised by the motion to dismiss, i. e., whether the facts, the youth of the child, his inexperience, his ignorance of the nature and dangers of the work and the failure to instruct him, made it negligence to employ him. The reason of the thing and all the best authorities sustain that it was not error of which the defendant could complain to submit this evidence to the jury. Cooley on Torts, page 652, says: "The master may also be guilty of actionable negligence in exposing persons to perils in his service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in the employment of infants. . . . The duty of (640) the employer to take special cautions in such cases has sometimes been emphatically asserted by the courts."
The law, says Thompson Neg., 978, "puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all: the master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult."
These be wise and just words, and were so esteemed by the Supreme Court of Ohio, which cited with approval both the above extracts in Rolling Millv. Carrigan, 46 Ohio St. 283; 15 Am. St., 596. Further citing like authorities from the decisions of sister States, that Court further held that an infant employee whose employer has not instructed him, as it was his duty to do, and who, while in the discharge of his employment, suffers an injury by reason of such neglect, may maintain an action therefor notwithstanding he did, by reason of his youth and ignorance, some act which contributed to his injury, but *Page 455 which he was not advised would be likely to injure him. To same purport cases cited in the notes to that case, 15 Am. St., 603, and Smith v. Irwin (51 N. J., 507), 14 Am. St., 699, and notes.
In Tagg v. McGeorge, 155 Pa. St., 368; 35 Am. St., 889, it was held that the master is liable for the injury resulting when he puts a young and inexperienced person to work with a dangerous machine without giving suitable instructions as to the manner of using them, and warnings as to the hazard of carelessness in their use. See also notes to this case, 35 Am. St., 889. To the like purport is Norton v. Volzske (158 III., 402); 49 Am St., 167, and cases cited therein and in the notes (641) thereto.
In Bailey Per. Inj., sec. 2766, it is said: "Persons who employ children to work with dangerous machinery or in dangerous places should anticipate that they will exercise only such judgment, discretion and care as is usual among children of the same age, under similar circumstances, and are bound to use due care, having regard to their age and inexperience, to protect them from dangers incident to the situation in which they are placed; and as a reasonable precaution in the exercise of such care in that behalf, it is the duty of employer to so instruct such employees concerning the dangers connected with their employment, which dangers, from their youth and inexperience, they may not comprehend or appreciate, that they may, by the exercise of such care as ought reasonably to be expected of them, guard against and avoid injuries arising therefrom"; and further adds that an infant who, by reason of his youth and inexperience, is injured, when not properly instructed and warned as to the dangers incident to his work, may recover therefor. See also sections 2774, 2777 and 2789. In section 2767 (also in 1 S. and R. Neg., 73a) it is said, quoting authorities, that over fourteen years of age the law presumes capacity and intelligence, and under that age the presumption is the other way. The duty of masters to infants is also summed up in similar language to the above authorities in 1 Sher. and Red. Neg., secs. 73 and 219.
In Watson Per. Inj., sec. 114, it is said: "The defendant will be liable if negligent, though it is the act of the child injured which is proximate to his own injuries, if such act is of a character naturally to be expected of a child and in accordance with the usual indiscretions and errors of judgment characteristic of immature years." It does not appear, and cannot be ascertained, how this injury occurred. The little sufferer, in his artless testimony, says he does not know; that (642) *Page 456 he did not put his hand in, and he could not have been hurt if he did not, yet he was hurt. If, as is probable from his account, he thought to rest his tired little legs by leaning against the machine (as he said he did), and dropping asleep he unconsciously flung his arm over the top to rest himself or to keep from falling, or if (as defendant contends), with the curiosity and lack of judgment nature makes incident to nine years of age, he climbed upon the machine "to see the wheels go round," and touched them, this, there having been, as he testifies, no instruction nor warning from the employer as to the danger, would, upon the above authorities, justify the finding of the jury.
There is no exception presented as to contributory negligence, but it may not be inappropriate to recall that in Ward v. Odell, 126 N.C. 946, this Court said (approving the charge of the court below, who was the same judge who tried this cause), that if the immaturity and inexperience of a child of eleven years old was the cause of his exposing himself to danger, he was not guilty of contributory negligence, and added: "The factory superintendent put these children to work, knowing their immaturity of mind and body, and when one of them thus placed by him in places requiring constant watchfulness is injured, every sentiment of justice forbids that the corporation should rely on the plea of contributory negligence." There was a dissent in the case, but not upon this point.
The court below did not charge in this case that employing a child of nine years of age in such dangerous work, especially without instruction, was per se negligence. Whether it would be error to refuse to so charge is not before us and cannot be presented here, for the plaintiff is not appealing, and we can only pass upon exceptions to the charge, or refusal to charge, duly noted in apt time.
But as it is a subject of growing importance to (643) lawyers, as well as in public interest generally, it may be well to cite, as indicative of the conclusion to which the maturer judgment of mankind is tending, the age below which legislative construction in other States had made it illegal, and therefore negligence per se and irrebuttable, to employ any child in a factory, at the close of the year 1901. This list is taken from the State Laws in our library, and as to the foreign countries from the official publications of the U.S. government.
It is illegal to employ any child in a factory under fifteen years ofage in Florida, Rhode Island, Washington and Switzerland, or underfourteen years of age in Colorado, Connecticut, Illinois, Indiana,Kentucky, Maryland. Massachusetts. Michigan, *Page 457 Minnesota, Nebraska, New Hampshire, New York, Oklahoma, South Dakota,Tennessee, Vermont, Wisconsin, Wyoming, New South Wales, New Zealand,Ontario, Queensland and Sweden. In Manitoba it is illegal to employ children in any factory under sixteen years of age; in Ohio it is illegal to employ in a factory girls under sixteen and boys under fifteen. InLouisiana, New Jersey and Quebec the age limit is, girls, fourteen; boys, twelve. In Pennsylvania, France, Germany, Victoria and South Australia the age limit is thirteen. In the following it is illegal to employ children in any factory under twelve years of age: California, Maine, North Dakota,Virginia, Austria, Belgium, Denmark, Great Britain, Holland, Norway andRussia. During the present year Kentucky, Maryland and perhaps others have enacted laws making under fourteen years the limit, and Virginia has adopted the twelve-year limit. In Porto Rico children under sixteen are prohibited by law from working in factories more than six hours in twenty-four, and in Great Britain children under fourteen years can work only seven hours per day, and all under twenty-one are prohibited night work.
(644)
"The sob of the child in its helplessness, Curses deeper than the strong man in his wrath."
With this consensus of opinion in nearly the entire civilized world it might be that it would not have been error if the judge had held that it was negligence per se to put a child of the tender age of nine years to work on a dangerous machine which he had never seen before, without any instructions or warning, and to leave him there by himself without stopping the machine. But, however that may be, it certainly was not error to leave the question of negligence to the jury with the charge given in connection therewith, which was very favorable to the defendant.
No error.