dissenting. The allegations of the complaint, substantially stated, are: First, that the defendant employed the plaintiff, a child of nine years of age, to work for it around a machine called a “sander,” used for sand-papering lumber, and which consisted of a large iron frame “upon which were adjusted a system of drums covered with sand-paper, over which there revolved rapidly a system of iron rollers or cylinders/ when' in operation, and which said rollers or cylinders' were unguarded and uncovered, and exceedingly dangerous when operated by an experienced workman. Second, that the plaintiff was inexperienced in the use> and ignorant of the dangerous' character of said machine, and that the defendant, knowing of his youth and inexperience and ignorance, employed the plaintiff and set him to assisting in sanding pieces of lumber with the machine. Third, that the defendant carelessly and negligently omitted to give the plaintiff instructions in relation to hÍ£¿ Work, or tn caution him as to the dangers incident thereto'.
There is an allegation of the complaint in these words: “That- the plaintiff, by reason of his tender years, lacked the capacity to understand and appreciate the dangers incident *645to bis employment, and was -unfit by reason of bis youth and inexperience, to be set at such work, wbicb the defendant well knew, but carelessly and negligently so engaged bim in it.” There was another allegation that the child was badly hurt while be was' engaged in bis work, and that the injury was permanent.
At the end of the plaintiffs testimony, the following statement in the case on appeal appears: “The defendant here moved the Court to dismiss the complaint, under the Act of 1897, Chap. 106, for the reas'on that the defendant was not shown, in any aspect of the testimony, to have been negligent. During the discussion of this motion, the Court stated to the plaintiff’s attorneys that unless it were negligence in the defendant to. employ the plaintiff at all, the plaintiff bad not made out a case.”
Upon a careful review of the evidence, we are of the opinion that bis Honor made no mistake in bis conclusions' upon the effect of the evidence, and yet be submitted the matter to the jury, and there Was a verdict for the plaintiff.
That was error. The jury should have been instructed that there was no evidence tending to show that the defendant was negligent, as alleged in the complaint.
The following is the whole evidence in the case:
The plaintiff, being sworn, testified in bis own behalf as follows:
“I was eleven years of age the 1st day of August, 1901, and was hurt on Wednesday, the 3d day of January, 1900. I went to- work in the defendant’s factory on January 1,1900, and bad never before worked in any factory. My father was not at home on Monday, Tuesday nor Wednesday, the day that I was hurt. I went to the factory on Monday morning to get employment. I asked Mr. Redding if I could get work there, and he said yes. Mr. Griss'om, the- foreman of the factory, said he would give me twenty-five cents per day, and I hired to bim, and be put me to Tailing a moulder and *646pulling sawdust to the furnace.’ I tailed the moulder the first day, tailed a planer some the next day, and tailed the moulder and planer some the day I went to work on the sander. I went to work on the sander about one o’clock. A sander is a machine with rollers and sand-paper on the rollers, and is run by belts. The machine was running when I went to it. Ellison was running the machine, and stood at its . front end, and I stood at the rear or back end. Ellison told me to go and take the planks as they came out of the machine. I worked there an hour and a half taking the planks out of the machine before I got hurt. The planks were one foot wide and one and a half feet long, and about an- inch thick. I had never seen a sander before. The planks being sanded were safe doors. When I got hurt, Ellison had left the machine to- got after more planks'. This was the only time he left the machine. lie did not stop- the machine. When I took a plank out, I was standing where I always stood. While Ellison was gone, I leaned- up against the machine and laid my hand on it, and it was caught, and I hollered. Somebody came and raised upi the machine and took my hand out. My hand was mashed up. Nobody explained the machine or warned me where the dangerous places were. I hired for three weeks, and told the foreman I was a school boy. I was' taken to- Ur. Staunton, and my hand Med very much. My arm rose about a week after I was hurt. I had never before been in a factory to stay any time, but had been in furniture factories several times, but had not examined the machines. My hand was mashed between the rollers.”
On cross-examination, plaintiff testifies-:
“Mr. Redding did not tell me about the machine. I don’t remember whether the machine was higher than my head. I was then four feet high. A sander is higher than a moulder.' I could stand on the floor and see on top of the sander, and co-uld see inside of the machine and see the rollers with the *647sand-paper on them running. I don’t know whether I could stand on the floor and reach over the top of the sander and put my hand down on the sand-paper. If I were to stand on the floor and lean up against the back of the machine, it would be safe, and I would not touch the machinery and it would not hurt me. I was not hurt by the cog-wheels) on the side of the machine. I did not climb up' on the machine. When standing on the floor I could lean up against th© machine and could not touch the wheels, but could see the wheels running. I do' not know how my hand touched the wheel. I was then four feet tall, and the plank came out of the end of the machine, about midway between the bottom and top of the machine. The end of the machine was covered up. The only place open was where the plank came out. I don’t know where I put my hand, but don’t think it was where the timber came out. There was' no timber coming out when I was hurt. I was not expected to go up and touch the machine. I knew it would hurt me. I knew it would hurt to put my hand on the moving wheels. I could see the sandpaper running. I did not have to put my hand on the machine in order to take the plank away. The plank might fall on the floor, and I could then pick it up. When I see a wheel turning over, I know it would hurt. I would not have been hurt if I had stood off from the machine, and that was my proper place to stand. The timber was light. I would take two at a time and put them on the truck. It was better to wait and take two at a time. I don’t remember what I leaned against the machine for. I could see if I put my hand between the rollers it would get hurt. My hand could not get in the machine if I had not put it in. there: I don’t know how long it was after I took out the last plank before I was hurt. It was about two minutes, I reckon. I was not hurt while taking out plank and putting it on the truck. I don’t remember what I leaned against the machine for; just never *648tb ought of myself, I reckon, and leant up again&'t it. It was a pretty dangerous place where I was working, as the timber would come out and push you backwards, if you did not look. I got pushed against the truck that way one time. The distance from the sandetr to the wall was as far as from me to you (about 12 or 15 feet), and about the same distance from the sander to any other machine. The sand-paper on the rollers' was going round as fast as it could. I could see if I put my hand between the rollers it would get hurt. If I had stood off where I ought to have stood, I would not have gotten my hand in. I don’t think I put it in, but it would not have got in unless I put it in. It was better to stand away from the machine to take the plank out.
“On re-direct examination, the plaintiff testified:
“The plank was nearly the same length and width. One roller ran one way and another, another. One roller was over the top of the other. I don’t remember which roller had the sand-paper on it. I was standing on my feet when I got hurt. I did not get off of the floor. I am five feet high, now. I don’t know whether I have grown a foot or not.
“E. H. Eitzgerald, father of the plaintiff, being sworn, testified for the plaintiff, in substance, that he lived in High Point. That he was father of the plaintiff. That he worked on a farm in the country. That he was not in town the day the plaintiff hired to defendant, and over defendant’s objection, testified that he did not hire the plaintiff to the defendant, and that he knew nothing about it. Defendant’s objection overruled. Exception. That when he got back the plaintiff ivas in bed with his arm dressed. That the doctor came to see him every day for a week or ten days; that there Avas an abscess' on his arm, from which the plaintiff suffered. That plaintiff remained in bed till the first week in March.
“On cross-examination, Avitness testified that the doctor’s bill Avas paid by the defendant.
*649“EL B. Crouch, witness for the plaintiff, being duly sworu, testified that be was working for defendant the day the plaintiff was hurt, and that when he got to the machine the plaintiff had his hand out of the machine. That when he first looked round on hearing the plaintiff holler, Albion Sheperd was getting the boy out. I have worked at sanders. The bed or frame of this sander was 36 inches wide and 5 feet 9 inches long, and 3 feet and 10 inches high. There were three sand drums in the machine, and the plank passes over the sand drum, and the rollers above feed the plank through. There are six or eight rollers, which axe about three inches in diameter. It is 10 inches from where the plank comes out at the end to the top of the machine. The sand drums run towards the front and the rollers run towards the back of the machine. Erom the place where the planks come out to the floor is three feet. If the plaintiff stuck his hand far enough it would reach the sand drum.
“On cross-examination, the witness testified: The machine is 36 inches wide, 46 inches high, and 5 feet 9' inches long. If the plaintiff was only 4 feet high at the time he was injured, he could not stand on the floor and reach over and touch the rollers. If you look over the top of the machine, you can see the rollers turning over, all of them, if no timber was in the machine. I think the plaintiff would have had to get up on the machine to get in the rollers. Don’t think he could stand on the floor and touch any roller that would hurt him. I don’t think the plaintiff could stand on the floor and look into the machine. There is' no danger in leaning up against this machine. It is about one foot from where plank comes out of the machine to the first roller, and this roller is ten inches from the top of the machine, and when the plaintiff was standing on the floor he would have to reach over the top of the machine and towards the front one foot and then down towards the floor ten inches before the roller would be *650touched. It does not look to me like be could have got bis 'baud iu without climbing up. The machine haa an iron casting all around it, from bottom to top, and be could not have got hisi band in the place where the timber comes out. The sander was ten or fifteen feet from any other machine. All the wheels inside can be seen by looking over the top of the machine. There was no danger about this machine, unless you put your hand in it. Boys are generally employed to do such work as the plaintiff was doing, and a boy the size and age of the plaintiff could do it in safety. There is an apron sis or eight inches wide projecting out across the end of the machine at a point about ten inches from the top, so that one could not lean directly up against the casting on account of this apron. The proper place to> stand to' tail this machine is about two feet from the back. There is no danger from belts in working near this machine, as they are at the front end and run at an angle of forty-five degrees or more.
“On re-direct examination, witness testified: Boys are employed to do this work because they are cheaper than men.
“Be-cross-examination: If the plaintiff was as much as four and a half feet high when hurt, he could not have stood on the floor and touched a single roller that would have hurt his hand. The rollers next to back of machine do not revolve when there is no timber going through, and I do not think the plaintiff could have been hurt by a feed roller.
Be-re-direct examination: If the plaintiff looked over the top he could see the feed roller running. The sand drums' run all the time. They are about 18 inches in diameter.
“Plaintiff rests.”
Prom] the evidence, it is clear that the defendant had taken every precaution to encase the machinery, and thereby to render it as safe as could reasonably be done to those who were employed about it; and that any danger connected with its operation was fully known and appreciated by the plain*651tiff. No instruction, therefore, was necessary to be given him. So far as the whole evidence goes, the defendant was not negligent, either in the character of the machinery used, in the provision made for protection against harm to its employees, or in its failure to instruct the plaintiff as to any danger connected with his work.
There was testimony given by one of the employees' of the defendant that little boys were employed to do the work which the plaintiff was engaged in when he was hurt, because their labor was cheaper than that of men. - If the writer of this opinion had the power to correct that evil practice and bad example, it would be corrected at once. The employment of children of the age of this plaintiff by manufacturing establishments is revolting to the sensibilities' of all generous minds; and the personal injuries, which often come to these little sufferers while engaged in such work, arous'e the sympathies and also the indignation of great numbers of our people —of those who have children especially. If the writer was a member of the legislative body, his vote would be to prevent, by stringent enactment, the employment of children under twelve years of age in connection with dangerous machinery. But it is the function of the judiciary — the duty of the Court- — to expound the laws, not to make them. According to the testimony, the plaintiff, at the age of nine years, and employed because his labor-was cheaper than that of a man, has' been maimed for life, and yet we, as a Court, in my opinion, can grant him no relief under the laws of the Commonwealth.
Furches, C. J. I concur in the dissenting opinion.