I concur in the judgment of reversal rendered in this case, but I do so on a ground different from that stated in the ojnnion. The court, as I understand the opinion, holds that there is no right of action in the parent for the death of a child caused by the willful violation of the provisions of the statute known as the Miners’ Act, for the reason, as stated in the opinion, that “no provision is made in that act for the survivorship of the action.” Now, the act in question, after stating that no person under the age of 14 years shall be permitted to work in any mine, provides that for any injury to persons or property occasioned by a willful violation of the act “a right of action shall accrue to the party injured for any direct damages sustained thereby.” Sand. & H. Dig., § 5058. It makes no reference to the question as to whether a right of action survives to the heir or next of kin in case death is caused by a’ violation of the statute. That question is, then, I think, controlled by the general statute on the subject, which provides that whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such ease an action may be brought in the name of the personal representative, or, if there be no personal representative, in the name of the heir at law, for the benefit of the widow and next of kin of the deceased person. Sand. & H. Dig., §§ 5911, 5912.
In this case Mrs. Gabsky is the heir of her deceased son, and can, I think, by virtue of this statute, maintain an action for any injury suffered if her son’s death was caused by the wrongful act of the defendant, provided that she herself was guilty of no act which precludes her right to recover. This position, I think, is fully sustained, not only by the language of the statutes above referred to, but by the decisions of this court in cases where actions for the next of kin have been brought against those causing death. For instance, we have a special statute, passed in 1891, requiring persons in charge of running trains to keep a lookout, and providing that the company operating the railroad shall be “responsible to the person injured for all damages resulting from neglect to keep such lookout.” Sand. & H. Dig., § 6207. This statute is also a special act, and was passed subsequent to the general statute in reference to the survival of actions; but, where death results from the failure to keep such a lookout, it has never been doubted that an action may be brought against the railroad company causing the death for the benefit of the next of kin. The reports of this court show that numerous actions of that kind have been sustained, and this though the statute requiring the lookout to be kept makes no provision for a survival of the action. The action for the benefit of the next of kin in such cases is authorized by the general statute above referred to, which embodies the substance of the English statute known as Lord Campbell’s Act. If an action lies for the benefit of the next of kin when the death of a child is caused by a failure to keep the lookout required of railroad companies, I see no reason why one may not be brought when death is wrongfully caused by a failure of the operator of a coal mine to obey the statute forbidding operators of mines to permit children under the age of 14 years to work therein. There is no reason for a different rule in the two cases, and I am therefore unable to agree to the law as stated in the opinion of the court on that point.
But, though I dissent from the reasons stated in the opinion of the court, I think the judgment of reversal is right, for the reason that it was shown that the plaintiff, Mrs. Gabsky, permitted her son to work in the mine, and that it was at her request, made through one Reskoski, that permission was obtained for him to work in the mine of defendant where he was killed. The statute says that no person under the age of 14 shall bo permitted to enter any mine to work therein. The defendant company, at the instance and request of Mrs. Gabsky, permitted her son under that age to work in its mine. He was killed, and she alleges in this action that his death resulted from the act of the company in permitting him to work in its mine, and she asks for a judgment for damages. But the act for which she complains was brought about through her consent and connivance. In other words, she asks judgment against the company for damages for doing that which she requested it to do.
A statement of the case, it seems to me, is conclusive against her. It is not a question of contributory negligence, as counsel contend, but a question whether one wrongdoer shall recover against another for damages resulting from an act which they jointly participated in and brought about. 7olenii non fii injuria is a maxim of the law; but this case goes further, for Mrs. Gabsky not only consented, she instigated and procured, through her agent, Reskoski, the permission of the company for her son to work in the mine, and she received the benefit of that labor.
The object of the statute was to protect the minor against the dangers of such an occupation. His consent or willingness to work in the mine would amount to nothing, and would bar neither himself or next of kin from bringing an action. But it seems to me plain that a parent who consents to a violation of this statute, and exposes her child to the dangers against which the law seeks to shield him, cannot, if the death of her child is caused by such violation of the law, recover damages therefor. The law, based on sound public policy, would forbid a recovery in such a case. As the only thing complained of is an act to which she consented, I think the judgment in her favor is wrong, and should be reversed. Cooley, Torts (2d Ed.) ; Bishop, Non-Contract Law, §§ 54, 59; Jaggard, Torts, §§ 189, 199.
But it docs not follow, because she consented that her son should work in the mine, that she consented to any want of care on the part of the company towards him after he entered the mine, and whether she could recover if the injury was caused by the negligence of the defendant in the operation of its mine is a different question from the one decided, and need not be considered, for the case was not tried on that theory.