Leathers v. Blackwell Durham Tobacco Co.

Connor, J., after stating the’case: Tbe defendant’s exceptions, numbered two to seven, inclusive, are directed to tbe admission of evidence tending to show that boys, other than and near the age of tbe plaintiff, were injured while work *339 ing at the same machines, it appearing that there were quite a number of exactly the same construction operated in the same room. The purpose of this evidence was not to show any defect in the machine. The basis of plaintiff’s action is that, being a child under twelve years of age, the defendant put him to work at a machine the operation of which was dangerous, and that this was known, or ought to have been known, to defendant. Eor the purpose of showing the dangerous character of the machine and tending to show knowledge thereof on the part of the defendant, the testimony was competent. The machines were all made by the same pattern and operated in the same way and in the same manner. The defendant denies that the operation of the machine was dangerous. What better way to ascertain the truth than by showing that persons at or near plaintiff’s age were injured in operating them; that is, machines of the same kind and pattern, under same conditions. If the jury found, as alleged, that they were dangerous, then a higher degree of care was imposed upon the defendant in selecting boys to work at them to give them explicit instructions in regard to the manner of using and operating them. The ruling of his Honor is sustained by Dorsett's case, 131 N. C., 263, and is correct upon principle. The fact that Cothrane worked at the same machine, under exactly similar conditions, ' after plaintiff was injured, does not affect the admissibility of his testimony. Defendant insists that his Honor was in error in giving an instruction based upon the assumption that the jury should find that plaintiff was under twelve years of age, for that there was no evidence to sustain such finding. The complaint alleges that the plaintiff was at the time he began work at the machine “about the age of fourteen years.” The complaint was filed at January Term, 1906. “That on or *340 about 1 May, 1905, the defendant’s overseer directed the plaintiff to go to work as a tier of tobacco sacks in the automatic packing room/’ The defendant, answering, says: “The defendant admits that the plaintiff worked for the defendant in the early part of 1905, * * * and sometime about the last of April or the first of May the plaintiff changed his employment, and was tieing tobacco sacks at an automatic packing machine.” Here is a clear averment in respect to the time at which the plaintiff began the work in which he was injured, 1 May, 1905, with an equally clear admission that the plaintiff began work “about the last of April or the first of May, 1905.” It is true that for the purpose of availing himself of admissions not responsive to nor called for by the specific allegations in the former pleadings, but made by way of recital, the party relying upon them must put them in evidence, the reason given in Smith v. Nimock, 94 N. C., 243, and cases in which it is cited, being that it is but fair to give the party making such admissions an opportunity to explain them. See Munroe’s citations. When, however, the plaintiff, in making a “plain and concise statement of facts constituting a cause of action,” sets out a date or other material fact, and the defendant, being thus fully informed of the allegation by the plaintiff, expressly admits such material fact so alleged, we can see no good reason why the Court may not take such admission as settling such fact for all purposes connected with the trial. It must be conceded that the decisions heretofore made in respect to ^ admissions which come within the rule announced in Smith v. 'Nimoch do not so clearly mark the line of distinction as might be desired. The difficulty experienced in doing so is manifest, but we think it safe to say that when a material fact is alleged in the complaint and admitted in the answer— a fact the denial of which would have presented an issuable *341 controversy in tbe canse — it may for tbe purpose of tbe trial be taken as true. Gui bono submit to tbe jury an issue or offer proof of sometbing solemnly admitted to be true. Certainly tbe reason upon wbicb tbe rule requiring tbe introduction of tbe pleadings is based- — that tbe admission may bave inadvertently been made — does not obtain in tbis case. Tbe complaint puts tbe defendant upon notice that tbe time of-tbe jury was material, and tbe age of tbe plaintiff would constitute a material factor in tbe litigation. Tbe fact must bave been known to tbe defendant’s superintendent by his pay-rolls. To send tbis case to another jury to ascertain a fact so clearly admitted in tbe pleadings would be extremely technical. We concur with tbe learned counsel that, there is no evidence in tbe record showing tbe day of tbe injury. The authorities cited and tbe reason of tbe thing sustain bis contention that where it is incumbent upon a party to show that an event occurred on a particular day of tbe month, it is not sufficient for him to show that it occurred during tbe month, tbe presumption being, as against him, that it occurred on tbe last day of tbe month. Being of tbe opinion that tbe answer admits that tbe plaintiff went to work at tbe machine “about tbe last of April or first of May,” tbe jury might bave properly inferred that it was prior to tbe twelfth of May. Tbe testimony shows that tbe plaintiff was injured on tbe fourth day of bis employment, and that be was born on 12 May, 1893. From these facts, in respect to wbicb there is no controversy, tbe Court below properly left tbe question to tbe jury to say whether tbe plaintiff was, at tbe time of tbe injury, under twelve years of age. Counsel call attention to tbe affidavit, made by tbe plaintiff’s father, for tbe purpose of obtaining permission to sue .as bis next friend, that the plaintiff is “a boy thirteen years old.” Tbis affidavit was made 12 *342 January, 1906. He was on that day, according to tbe evidence, twelve years and eight months old. Assuming, for the purpose of the defendant’s argument, that the affidavit was, as a part of the record, before the jury, and that it was competent as a declaration against the plaintiff, we do not perceive any conflict with the plaintiff’s contention. To say on 12 January, 1906, that a boy is thirteen years of age does not necessarily contradict the mother’s statement that he was born 12 May, 1893. The nearest birthday is usually designated as fixing the age of a person, in common parlance. It was entirely immaterial, for the purpose of the affidavit, to fix the age more definitely. The defendant earnestly contends that, passing the criticism of his Plonor’s charge in this respect, he committed error in sáying to the jury that if they believed the evidence relative to the employment of the plaintiff by the defendant, the work which he was required to do, the character of the machine at which he was required to Work and the injury which he received, and that he was injured by the machine while at work, they should answer the first issue, “Tes.” The issue involved the proposition that the plaintiff was injured by the defendant’s negligence as alleged. This involved a breach of duty which the defendant owed to the plaintiff, and which was the proximate cause of the injury. The correctness, therefore, of his Honor’s instruction depends upon whether there was evidence which, if true, established as a legal conclusion breach of duty, injury and proximate cause. There was unquestionably evidence tending to show that the plaintiff was employed to work in the defendant’s factory at a machine, the use or operation of which by him was dangerous; that he was at the time under twelve years of age, and that four days after being put to work he was injured by the machine while employed in operating it, *343 or tieing tbe sacks — that .being the thing which he was employed to do. Assuming these facts to be found by the jury, do they constitute a cause of action, as a matter of law? They undoubtedly would not if the plaintiff were over twelve years of age. At the time of the employment and of the injury, the Statute Laws, 1903, ch. 473, declared: “That no child under twelve years of age shall be employed or work in any factory or manufacturing establishment within this State.” It is not denied that the plaintiff was injured in a “factory or manufacturing establishment” within the meaning of the statute. We thus have presented for decision the question whether the employment of a child in a factory within the prohibited age is negligence per se, entitling it to recover for an injury sustained, such employment being the proximate cause thereof — or whether such employment is only evidence of negligence to be submitted to the jury. His Honor evidently construed the language used by us in Rolin v. Tobacco Co., 141 N. C., 300, as answering the first branch of the question affirmatively. In that case, being the first which came to this Court after the passage of the statute, theHJourt below nonsuited the plaintiff and we held that in any aspect of the testimony the case should have gone to the jury. The question which gave us more difficulty in the case was whether, upon the plaintiff’s testimony, he was engaged in performing the work for which he was employed, and, therefore, whether there was any evidence that such employment was, in any aspect of the testimony, the proximate cause of his injury. This Court has held in a series of cases, affirming the instructions given by the Superior Court Judges, that a failure to obey town ordinances regulating the rate of speed was at least evidence of negligence. Edwards v. *344 Railroad, 129 N. C., 78. The language of Justice Douglas indicates that in some cases such violation of a town ordinance would be negligence per se. The Judge in Edwards’ case instructed the jury that if the injury to the plaintiff’s intestate was caused by the violation of the ordinance, they should give to the first issue an affirmative answer. This the Court said was correct. In other cases we have approved the instruction that violation of speed ordinances was evidence of negligence. In Bolin’s case, supra, we followed this rule, saying that the employment of a child within the prohibited age was strong evidence of negligence. In neither of those cases was it necessary to decide the question presented by his Honor’s instruction. The defendant insists that the instruction, by treating this employment, assuming the plaintiff to be under twelve years of age, as negligence per se, does violence to the decision in Rolin’s case. We have given to the question most careful consideration, and re-examined both the basis of the rule and the authorities in which it is discussed. Mr. Bishop says: “Whenever the common law, a statute or municipal by-law, or any other law imposes on one a duty, if of a sort affecting the public within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has 'suffered specially therefrom.” * * * “The civil action is maintainable whenj and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in Court.” Non-contract Law, secs. 132-141. Lord Holt ruled that “when a statute enacts or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted to his advantage, or for *345 the recompénse of a wrong done to him contrary to the said law.” Mod. Cases, 26-27. Judge Thompson, in his work on Negligence (vol. 1), sec. 10, says: “When the Legislature of a State or the council of a municipal corporation, having in view the promotion of the safety of the public or of individual members of the public, commands or forbids the doing of a particular act, the general conception of the courts, and the only one that is reconcilable with reason, is that a failure to do the act commanded, or doing the act prohibited, is negligence as mere matter of law, otherwise called negligence per se; and this, irrespective of all questions of the exercise of prudence, diligence, care or skill. So that if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains is to assess his damages.” The author expresses regret that “two or three authoritative courts” have held that the violation of a statute is only “evidence of negligence.” He proceeds to criticise the doctrine in vigorous terms, sec. 11: “If a specific duty is imposed upon any person by law or by a legal authority, an action may be sustained against him by any person who is specially injured by his failure to perform that duty.” Shearman and Fed. Neg., 54. The authors say that the action is in tort for negligence. “The violation of an imposed statutory duty is a sort of negligence per se. Thus, where a, railroad operates its trains at a higher rate of speed than the law allows, the question whether it is guilty of negligence is not debatable. This preliminary matter the law conclusively determines against the company, and the sole question to be settled in cases of this kind is whether that delinquency can be considered a proximate cause of the damage of which complaint is made.” 1 Street Foundation *346 Legal Liability, 172. A number of illustrative cases are cited. The several views are stated in 21 Am. and Eng. Enc., 478, and the cases, illustrating them, cited. We have carefully examined a number of cases and find that a large number of the courts have adopted- the opinion of the text-writers. It is so held in Perry v. Tozer (Minn.), 97 N. W., 137; Am. Car Co. v. Armentrual, 214 Ill., 509; Billings v. Breinig, 45 Mich., 65. In Railroad v. Stebbing, 62 Md., 505, Alvey, C. J., speaking of a speed ordinance says: “This ordinance is general, and is for the protection of the public .generally; but the neglect or disregard of the general duty imposed for the protection of every one can never become the foundation of a mere personal right of action until the individual complaining is shown to have been placed in position that gave him particular occasion and right to insist upon the performance of the duty to him personally. The duty being due to the public, composed of individual persons, each person specially injured by the breach of duty thus imposed becomes entitled to compensation for such injury.” In Railroad Co. v. Voelker, 129 Ill., 540, it is said (p. 555): “A statute commanding an act to be done creates an absolute duty to perform such act, and the duty of- performance does not depend upon and is not controlled by surrounding circumstances. Non-performance of such statutory duty, resulting in injury to another, may therefore be pronounced to be negligence as a conclusion of law.” Penna. Railroad v. Horton, 132 Ind., 189; Ga. Railroad v. Carr, 73 Ga., 557; Railroad v. Young, 81 Ga., 397; Messenger v. Pate, 42 Iowa, 443; Muller v. Milwaukee Street Railway Co., 86 Wis., 340; Hayes v. Railroad, 70 Tex., 602; Tucker v. Ill. Cent. Railroad, 42 La. Ann., 114; Queen v. Dayton Coal Co., 95 Tenn., 459 ; 49 Am. St., 935. In Salisbury v. Horchenroder, 161 Mass., 458, the evidence showed that defendant *347 bung a sign over the sidewalk in front of bis store, in violation of an ordinance of the town. It was blown down by a gale of wind, injuring plaintiff’s property. Chapman, C. said: “If the .defendant’s sign bad been rightfully placed where it was, 'the question would have been presented whether be bad used reasonable care in securing it. If be , bad done so, the • injury would have been ‘ caused, without bis fault, by the extraordinary and unusual gale of wind, etc. * * * But the defendant’s sign was suspended over the street in violation of a public ordinance of the city of Boston, by which be was subject to a penalty. He placed and kept it there illegally, and this illegal act of bis has contributed to the plaintiff’s injury.” the defendant was held liable because in placing the sign over the sidewalk be violated the city ordinance, and this illegal act was held to be the proximate cause of the injury to plaintiff. In Toby v. Burlington, C. R. & N. Railway, 33 L. R. A., 496 (94 Iowa, 256), it is said: “It is a general rule that the doing of a prohibited act, or the failure to perform a duty enjoined by statute or ordinance, constitutes negligence for which the party guilty of such act or omission is liable, unless excused by the contributory negligence of the one to whose person or property it is done,” citing many authorities. To the same effect is Labatt on Master and Servant (vol. 2), 2177. He says: “By many courts it is held that a violation of such a statute constitutes negligence per seAfter stating the other theories, he says: “That the former of these theories is the correct one can scarcely be doubted. A doctrine, the essential effect of which is that the quality of an act which the Legislature has prescribed or forbidden becomes an open question upon which juries are entitled to 'express an opinion, would seem to be highly anomalous. The command or prohibition of a permanent body, which represents an entire community, *348 ought, in any reasonable view, to be regarded as a final judgment upon the subject-matter, which renders it both unnecessary and improper that this question should be submitted to a jury.” The latest expression of judicial thought in England corresponds with the authorities cited. In Groves v. Wimborne, 2 L. R., 1898, Q. B. Div., 402, Rigby, L. J., at p. 412, says: “When an absolute duty is imposed upon a, person by statute, it is not necessary, in order to make him liable for the breach of that duty, to show negligence. Whether there be negligence or not, he is responsible qua cunque via for the non-performance of the duty.” In New York the Court held in the Marino case, 173 N. Y., 530, upon an appeal from a judgment of nonsuit, in an action by a child employed within the prohibited age for an injury sustained, that the violation of the statute was at least evidence of negligence. In Lee v. Silk Mfg. Co., 93 N. Y., Supp., 560, Gaynor, J., in a very strong and satisfactory opinion, held that in such an action the employment in violation of the statute was negligence per se. He reviews the Marino case and shows that to say that such violation is “some evidence” is illogical. This case was appealed to the General Term and reversed upon the authority of the Marino case. 101 N. Y., Supp., 18. While it may not be strictly accurate to speak of the breach of duty arising out of a violation "of a statutory duty as negligence, as we have seen, it is so, generally treated, as entitling the injured person to an action on the case for negligence. Eor practical purposes, it is a convenient mode of administering the right because it involves the question of proximate cause and contributory negligence. Upon careful consideration, we conclude that the law is correctly laid down by Judge Thompson and the other authors quoted, and sustained by the best-considered decided *349 cases. The defendant insists that if this be true his Honor committed error when he withdrew from, the jury the question of proximate cause. AVhile it is true that if there be any dispute regarding the manner in which the injury was sustained, or if, upon the conceded facts, more than one inference may be fairly drawn, the question should be left to the jury, yet it is equally well settled that when there is no dispute as to the facts, and such facts are not capable of more than one inference, it is the duty of the Judge to in--struct the jury, as matter of law, whether” the injury was the proximate cause of the negligence of the defendant. In this case the plaintiff is the only .witness as to the manner in which he was injured. After describing the construction of the machine and the method of operating it, he says: “I worked four days as a tier; had to tie 25 or 30 sacks a minute on the fast machine. As the blocks move, the tags are on the left-hand side of the blocks. You cross your hand and catch the double string on the sack and draw it up and tie it in a bow knot. You sit on the stool. * * * As I went to- tie the sack, the string got around my finger and, as the blocks moved, it pulled my finger into the blocks. There is a little slide by these blocks, and the string pulled my finger under the blocks, and it was caught between slide and block.” His finger was cut off. From this testimony we do not perceive how any question can arise in regard to the proximate cause. The illegal act of the defendant placed the plaintiff at the machine. While operating the machine as he was employed to do, he was injured in the manner described by him. What other inference, or conclusion can be drawn, than that the employment, in violation of the statute, was the proximate cause of, the injury. There is no suggestion of any intervening cause, as in Rolin's case. We are not, in this aspect of the case, considering the dangerous character of tire machine *350 or the duty to warn and instruct plaintiff. These matters would be pertinent if plaintiff was over the prohibited age. These duties are imposed by the common law, independent of any statute. This is elementary and illustrated in many cases. The statute is made, in pursuance of a wise, humane public policy, to prohibit the parents of children under twelve years of age from hiring them out or owners of factories from employing them to work in the places named, the Legislature taking notice of the .character of work, etc. In the exercise of her power and in the discharge of her duty to protect her young children from being crippled, maimed .and growing^ up in ignorance, rendering them unfit • to discharge the duties of citizenship, the State positively, and without regard to the character of the machine used, prohibits children under twelve years of age from being, employed or worked in “factories or manufacturing establishments.” The law is made for their protection, and where, by its violation, one of them .suffers an injury a. right of action accrues to him for damages. In the language of Judge Gaynor, supra: “This is a statute which marks an epoch in the progress of humanity, and the courts should not get in its way or whittle it down.” This Court has, in no uncertain way, discharged its duty to so construe the statute as to advance the remedy ánd suppress the evil. Fitzgerald v. Furniture Co., 131 N. C., 636. Eor the first time we have before us the question presented by his Honor’s instruction. We 'are of the opinion that, although possibly somewhat in advance of what was said in Rolin's case, he correctly interpreted the law, and we sustain his ruling. From the viewpoint that the plaintiff was not under twelve years of age, his Honor correctly instructed the jury regarding the defendant’s duty to' furnish safe machinery and instruct the plaintiff in its use. There can be *351 no just criticism in this respect. It is uniformly held that a child within the prohibited age does not assume any risk of the employment to which he is put. Some of the courts deny that a recovery for injuries can be prevented by contributory negligence. We had occasion to examine this question in Rolin's case, and upon a re-examination of it find no reason to change our opinion as therein expressed. T'he presumption is that a child under twelve years of age is incapable of contributory negligence, but this presumption may be overcome and, if there be evidence tending to do so, it should be submitted to the jury with proper instructions. This his Honor did, and we find no error of which defendant can complain in this respect. The only other exception urged in the brief is that in speaking of the age of the plaintiff’s alleged-contributory negligence he used the expression, “a boy only twelve or thirteen years of age,” etc. The instruction was free from error, and we do not think the words criticised are open to the exception. We have examined with care the entire charge, and think that the case, in all of its phases, was fairly submitted to the jury. The defendant argues that because plaintiff did not declare upon the statute, or make any reference to it, he can not avail himself of its provisions. While it is true that where one sues for a penalty it*is usual and pxopeT to refer to the statute, it is not necessary if he set out facts bringing his case within the statute. Plaintiff sues for a breach of duty, «and may rely on the statute to maintain his action. We note that the General Assembly, at its late session, restored the statute as enacted in 1903 and changed in the Revisal, with some further protective features requiring certificate as to age and school attendance. It is the settled policy of the State of North Carolina that her children, under the age of twelve, at least, shall be in her public schools *352 and not in hex* factories and manufacturing establishments. In giving tbe construction which we have to the statute we but advance this wise, humane and settled policy of the State. The judgment must be Affirmed.