dissenting: Tbe plaintiff was not accorded the privilege of a jury trial to determine tbe facts. Therefore the evidence must be taken in tbe most favorable aspect for him and in tbe light of tbe most favorable inferences which could have been drawn therefrom by tbe jury. His intestate was a child, small for bis age, which was under twelve, and had not taken off knee pants. He was employed at South Eocky Mount to carry messages across a yard filled with eighteen or *134twenty tracks, with engines and trains moving backwards and forwards, every few minutes. Among these were through trains and also the shifting engines, moving freight and passenger cars to make up trains. His duties required, him to carry messages over and across this yard. A more deadly and perilous place could not be imagined. Such duty would have taxed the discretion and judgment of a much maturer person. The defendant did not attempt to show that they had given the child any caution or instruction whatever.
In Fitzgerald v. Furniture Co., 131 N. C., 645, this Court cited with approval the following language from Thompson on Negligence: “The law 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.” This being a duty devolving upon the defendant, the burden was upon it to show that such caution was given and its nature. But nothing of the kind was even attempted to be shown. It follows that the presumption that such caution was not given is not removed.
In Ward v. Odell, 126 N. C., 948, a child eleven years old, employed in a factory, in passing from one part of the mill to another stopped for a moment at a bench where a wire was being cut, when a piece of wire flew off and put out his eye. It was held that the injury was conclusive that the work was dangerous, and that in such case “These little creatures exposed to such dangers against their will cannot be held guilty of contributory negligence.” Nor was it a defense that the child was hired to the company by the father. “It was the child’s eye which was put out, not the father’s. The father could not sell his child nor give the company the right to expose him to danger. The suxoerintendent put these children to work, knowing their immaturity of mind and body, and when one of them thus *135put by bim iu places requiring constant watchfulness is injured every sentiment of justice forbids that the corporation should rely upon the plea of contributory negligence.” If that is true as to cutting wires in a factory when the child was not on duty at the time, it is necessarily so as to the danger ten times more deadly of crossing eighteen to twenty tracks with engines and ears constantly moving backwards and forwards and when the child’s duties required him to cross the tracks.
On this occasion there was no eye-witness as to how the child was killed, but he was found dead upon one of these tracks with his leg cut off. The inference is irresistible that he was killed by a passing train. Powell v. R. R., 125 N. C., 370. If there could be any possible doubt about it, the evidence was certainly sufficient to be submitted to a jury to draw the inference. The little child being found dead with his leg cut off in such a network of tracks, among constantly shifting trains, creates as strong a presumption that his leg was cut off by one of these trains as when a soldier is found dead on a battlefield with a bullet through his head, that he was killed by the enemy.
It, is urged that it is not shown that the little boy in his knickerbockers was on duty, because there is evidence tending to show that he was killed on Sunday morning. The opinion of the Court says: “No one testifies that he was killed on Sunday. W& assume it.” Yet nothing is better settled, than that nothing can be assumed against the plaintiff on a nonsuit. The evidence is that he was employed to carry dispatches across these tracks. The very nature of the work as a necessity in operating trains is conclusive that it was carried on every day. There is no evidence whatever that these messages were not required to be sent on Sunday as well as on other days. It is well known that these through trains, and that also the shifting of ears and engines on these tracks, are operated on Sunday, as well as on other days. His duty was such as could not cease on Sunday. Eeference to the decisions of this Court will show cases in which this defendant was sued for the penalty in sending out its freight trains from this very yard on Sunday, and the defense was upheld that it had a right to send out through freight trains. The statute also permits the *136dispatching of both local and through passenger trains. It is in evidence in this ease that other laborers were present on the yard that morning. Taking the evidence in the light most favorable to the plaintiff, as the law requires us to do on a non-suit, it is a reasonable inference that the child was there in the performance' of the duty of carrying messages from one office to another across these tracks at the time of his death. It is not shown that he had occasion to go there for any other purpose, nor is it reasonable to suppose that after his arduous labors on these other days he would have revisited this spot on the morning in question as a matter of sport or play. The child was killed where he was required to do his work. If for any reason he was not at work at that spot on that day it was the duty of the defendant to show it, and it could have readily done so, if such was the fact. It did not attempt to make such proof.
It was also suggested that the child might have been killed by jumping up on one of the passing trains. One witness testified that he saw him riding on one of the shifting trains that morning. Rut there is no evidence that he was killed while doing so, and even if it had been shown that he was killed while so riding this would have been contributory negligence, which this Court held in Ward v. Odell, 126 N. C., 946, could not be set up against a child under twelve years of age. Besides, contributory negligence must be proven by the defendant. Rev., 483. The opinion of the Court refers to the statements in the answer as if the answer were evidence.
If we are to observe Judge Daniel's wise injunction, quoted by the Court, “that we should not be wiser than the law,” we will not reverse the humane decisions of this Court, above quoted, in order to defeat a recovery for the death of the little sufferer who by the avarice of the defendant was sent to his death by exposure to an accumulation of perils greater to him in his unguarded and unwarned innocence than that which met the charging column of brave men on Cemetery Ridge. Many soldiers survived four years of war. This child "was slain on the fourth day of his employment.
*137It may be asked, and it will be asked by future ages as well as by tbe present, wby an innocent child of this immature age should have been subjected to such perils, so far beyond his comprehension. This record gives the answer. His mother had seven other children to support. He had a stepfather. And in this combination of circumstances, the mother testifying that she did not know the dangerous nature nor the character of the employment, and indeed did not consent to his being employed, the defendant was able to procure this child’s services for the munificent sum of $12.50 per month. This was truly “the price of innocent blood.” Had the defendant employed a man or a boy of maturer years it would have had to pay a sum for his services more in proportion to the peril. Such a person would have known the dangers and would have charged for the risk.
By employing these little children the defendant is able to cheapen to that extent, by the competition, the price of other labor.
Nor is there any reason shown why the defendant company should not have put telephones across these tracks and thus have transmitted the messages without exposing any one to such dangers. The'only answer to this is the one that was ineffectually made in the Troxler and Greenlee cases, that it would have cost the defendant company some expenditure to put in the automatic couplers, as here it would cost a little something to put in the telephones.
This Court held, without any statute, but upon the principles of right and justice, in the Troxler and Greenlee cases, that it was negligence per se to subject a grown man to the danger of making a coupling without using automatic couplers, even when the man was instructed as to the danger, and that in such cases the railroad company could not set up the defense of assumption of risk or contributory negligence. This decision has been followed in other States and is a well-settled law in our own courts. Our law is humane.
Chief Justice Fuller, not long before his death, in a case of personal injury, in words of burning conviction said: “It is a reproach to our civilization that any class of American work*138men should, in the pursuit of a necessary and useful vocation, be subject to a peril of life and limb as great as that of a soldier in time of war.” Johnson v. R. R., 196 U. S., 1. A conservative estimate of the number of workmen killed or maimed in this country every year in industrial accidents is about 500,- ' 000. It is said that the total number killed and wounded in the Union Army during the Civil War was 385,325. In other words, the whole Confederate Army was unable to kill and cripple as many Union men in four years as are now killed and crippled in industrial employment in a single year.
We cannot expect this condition to improve if the courts can be induced to place the blame upon those killed and wounded, because, in order to make a livelihood and with a purpose of obeying those for whom they labor, they venture in dangerous pursuits, while under such conditions the same courts relieve the master, who created the condition and gave the orders, of all liability and blame whatsoever.
The courts elsewhere have not yielded their assent to the validity of the considerations urged by the defendant in this case.
In Molaske v. Coal Co., 86 Wis., 220, it was held: “The presumption is that a boy under fourteen years of age is not competent to perform duties involving personal safety and requiring the exercise of a good degree of judgment and constant care and watchfulness; and in an action for injuries resulting from negligence of a boy so employed the burden is upon his employer to show that he was in fact competent. Further, no usage to employ boys of such tender years to perform such duties can be upheld:” Here the boy was under twelve, instead of fourteen; no negligence by him was shown and no usage to employ boys of such age for such duties.
In Wynne v. Conklin, 86 Ga., 40, it was held: “Whether a boy of thirteen employed by the defendant to work in a tin-shop was of sufficient age and capacity to appreciate his hazard and provide against danger is for the consideration of the jury.” In this case the boy was under twelve and the danger to which he was exposed was fully an hundredfold greater than that in a tinshop, and a North Carolina jury in all justice *139should have considered and determined the question whether he was “of sufficient age and capacity to appreciate his hazard and provide against the danger” to which he was exposed.
In Goff v. R. R., 36 Fed., 299 (Va.), it was held an act of negligence on the part of a railroad company to take into its employment as a brakeman a minor of such tender years as not to know the risk of the service.
The rule established by Bare v. Coal Co., 61 W. Va., 28, that “It is actionable negligence for an employer to engage and place at a dangerous employment a minor who lacks sufficient age and capacity to comprehend and avoid the dangers of such employment, even though the employer instructs him as to the dangers incident to the work,” is a well-established 'rule, being laid down in Labatt on Master and Servant, sec. 251; Sh. and Eedf. Neg. (5 Ed.), sec. 219; 4 Thomp. Neg., sees. 3826, 4093, 4689; Bailey Pers. Inj., secs. 2758-2777; Dresser Employers’ Liability, 466; Buswell Pers. Inj., sec. 203; 2 Cooley Torts (3 Ed.), 1130, 1131; 20 A. and E. Enc. (2 Ed.), 299.
It is a question for the jury to say whether or not the deceased could appreciate the dangers and knew how to avoid them. Turner v. R. R., 40 W. Va., 675; 4 Thomp. Neg., sec. 4098.
The place where the child was put to work being a dangerous one, the question was open for the jury to pass upon the negligence of the defendant. Cahill v. Stone Co., 19 L. R. A. (N. S.), 1094; Lynch v. Nardin, 1 Q. B., 29; Pressly v. Yarn Mills, 138 N. C., 410.
In this case a child under twelve years of age, undergrown, and therefore known to be immature, was set to work by the defendant in a most dangerous place, exposed to be run over by the constantly passing trains and shifting engines crossing eighteen or more tracks, to carry messages which might have been sent by telephone. He was found dead on the track in the yard with his leg cut off. Under our decisions the company could not show contributory negligence, and neither pleaded nor offered to show any. It was the duty of the company to show that they had instructed any employee, much more a child, *140placed in sucb employment, of its dangers. The defendant did not show this. The work was of a nature which required employment on Sunday as on other days. The child being found dead where he would be passing in carrying his messages, if he was not at work that day the burden was upon the defendant to show it. The defendant did not offer to do so. Upon all the evidence, taken in the light most favorable to the plaintiff, it would seem impossible to conclude that there was not more than a scintilla of evidence tending to show negligence on the part of the defendant.
Hoee, J., concurs in dissenting opinion of Clabk, C. J.