ON PETITION TO REHEAR.
It is insisted that this court has erred in overruling the assignment of error as to the admission of the testimony of George Cravens as to the deceased boy saying to him, “I w'ent to get me a drink and I knocked my cap off.” Counsel insists that this is error because as a matter of law it is necessary for the plaintiff administrator to show by the testimony how the accident occurred as otherwise it may not have been an accident; and'that without this the effect of contributory negligence on the part of the deceased is wholly destroyed; .and it is not shown that permitting the boy to work in the mines was the proximate cause of the injury. It was not necessary for the plaintiff to prove that the deceased was free from contributory negligence. The plaintiff could make out his case without the introduction of such proof. It is only when contributory negligence is disclosed either by the plaintiff’s own evidence or that of his adversary, or by both together, that the burden is on the plaintiff to rebut it. Stewart v. Nashville, 96 Tenn., 50, 33 S. W., 613; Burk v. St. Ry. Co., 102 Tenn., 409, 52 S. W., 170; Railroad Co. v. Herb, 134 Tenn., 397, 183 S. W., 1011; Lovier v. Nashville, 1 Tenn. App., 401; Hughes & Co. v. Hall, 4 Tenn. App., 608. It is not even essential that a declaration in an action seeking a recovery for negligence of the defendant, should negative negligence or default on the part of the plaintiff or his intestate. Railroad v. Davis, 104 Tenn., 448, 58 S. W., 296.
The only evidence at all tending to show contributory negligence on the part of the deceased boy is this statement of the father as to what the boy said to him. Without this it is perfectly clear that there was no burden on the plaintiff to show the absence of suc|hi negligence. The admission of this statement was therefore to the advantage of the defendant and it is in no position to complain of it. No assignment of error is predicated upon the instruction given *428by the trial judge that ‘ ‘ employment of an infant in violation of the statute forbidding such employment and making it a misdemeanor constitutes negligence per se, such negligence as makes the employer liable for all injuries sustained by the infant in the course of his employment.” The trial judge did instruct the jury that, “while it is neglig’ence per se to employ a child under sixteen years of age in a coal mine to work, before there can be any recovery, the proof must show that the negligence, although negligence per se, was the prime and proximate causé of the injury inflicted upon him.” The jury might have inferred from this instruction that if the injury was proximately caused by the boy’s own negligence there could be no recovery. There was no instruction given or requested expr.essly upon the subject of contributory negligence. Mere omission in the court ’s charge is not reversible error in a civil ease where no request for proper and accurate instructions was made in the court below. Mere meagerness of the charge is not ground for reversal ■when no request for additional instructions was made. Railroad v. Wynn, 88 Tenn., 332, 13 S. W., 311; Maxwell v. Hill, 89 Tenn., 594, 15 S. W., 253; Railroad v. Acuff, 92 Tenn., 33, 20 S. W., 348; Willcox v. Hines, 100 Tenn., 537, 45 S. W., 781; Haley v. Ogilvie, 2 Tenn. App., 607.
It is true that in an action based upon negligence per se in the unlawful employment of a minor the defense of contributory negligence may be made, and that the issue thus made is to be determined by the jury under -full explanation by the trial judge as to the degree of care required of the minor. Queen v. Dayton Coal and Iron Co. 95 Tenn., 458, 32 S. W., 460; Manning v. American Clothing Co., 147 Tenn.. 274, 247 S. W., 103. In the case before us contributory negligence was manifestly not relied on by the defendant. In Iron & Wire Co. v. Green, 108 Tenn., 161, 65 S. W., 390, in which this defense was made, the court said:
‘ ‘ The very employment is a violation of the statute, and every injury that results therefrom is actionable.”
In Western Union Telegraph Co. v. Ausbrooks, 148 Tenn., 615, 257 S. W., 858, the court said:
“In the case before us, according to the proof of plaintiff below, the employment of the Ausbrooks boy was negligent and he met his death in consequence of — while engaged in — his employment, Therefore there is liability.”
It results, therefore, that the petition to rehear is not well taken and it is overruled at the cost of the petitioner. The defendant in error, George Cravens, administrator, having elected to dismiss this suit so far as George Cravens is concerned, judgment will bef entered in this court in favor of George Cravens, administrator, for the sole benefit of Mrs. Isabelle Cravens, against the Highland Coal *429and Lumber Company for the sum of $5000, with interest from the date of the judgment in the circuit court, and also against said company and the sureties on its appeal bond for one-half of the costs of the appeal. The other one-half will be adjudged against the defendant in error, George Cravens, administrator.
Faw, P. J., and Crownover, J., concur.