(Concurring) :
While agreeing to the decision, I wish to say, that it seems to me that in addition to Judge Dent's criticism on plaintiff's instruction 2, it is bad because it assumes Buskirk’s non-accountability by reáson of non-age.
Plaintiff's No. 6 makes the defendant liable for Howery’s acts, though under the law he was a fellow-servant, as Judge Dent states. He was a fellow servant, not a vice principal of the master, and his directing the boy to help at the machine, outside his usual line of work, was, if wrong, a wrongful, negligent act of a fellow servant. Any of the acts of Howery in this transaction were acts of a fellow servant under principles settled in Jackson v. Railroad, 43 W. Va. 380. That case followed the great weight of authority, and especially decisions of the National Supreme Court, and it is shown to be right by two later decisions by that of our highest court. New England R. Co. v. Conroy, 175 U. S. 323; Alaska Mining Co. v. Whelan, 168 U. S. 86. The defendant is entitled to the benefit of that law, over sympathy or feeling for the unfortunate boy, and it ought to be so declared. The fact that Buskirk was a minor does not take him out of the rule of fellow servants. McKinney, Fellow Serv. 21; the cases there cited show instances where the courts applied the rule to children of twelve and fourteen years. The fact that the boss took him from his usual line of work does not alter the case, because that boss was a mere fellow servant, and it must appear that he had authority to do the act. Pittsburg &c. v. Adams, 105 Ind. 151, 123 Am. & Eng. R. R. Cases 408; Louisville &c. v. St. Louis Co., 21 Id. 525.
Plaintiff's 8 is open to same objection.
The opinion in discussing instruction 6 says, that if on the evidence the jury had found for the plaintiff on contributory negligence, the verdict could not be set aside; in other words, it says in advance of a second trial, that the evidence is not enough to defend the company on that score. I think this Court should not thus pass on the evidence in a vital point in advance of a second trial.
I have objected to this in several cases not now recalled, except State v. Zeigler, 40 W. Va. 610. Where this Court does not grant a new trial on the evidence, but on some other ground, it *426should not indicate an opinion of that evidence any more than can a circuit court.
I think defendant’s instruction 2 is good. A man cannot he required to take more care of any one, even a son, than of himself. I think defendant’s instruction 6 is good because of the doctrine of fellow servantey.