Hamilton v. G. H. & S. A. R'y Co.

Gould, Associate Justice. The exclusion of the plaintiff’s testimony that she remonstrated with her son about his acting as brakeman, and of her answer to a question asking her what she said to him on the subject, would not have been erroneous, had the issue on that point been merely whether she consented to her son’s employment or not. Having testified positively that she had not, at any time, directly or indirectly, given her consent to his employment, what she said to her son on the subject would have been immaterial as to the fact of consent, and inadmissible for the purpose of charging the [561] company with notice or knowledge of her objection, because not made in the presence or with the knowledge of any of its officers. If, however, the issue was to extend to her entire conduct during the employment, and the inferences which might reasonably be drawn therefrom, we think that the fact of her remonstrance with her son, and the manner in which she remonstrated, might well have been admitted as tending to explain more fully what her conduct was. But we are of opinion that the court erred in that part of its charge which related to the conduct of plaintiff, as follows: “ Or if you believe that the plaintiff’s conduct in the control of her son and in her knowledge of his occupation was such as to induce a reasonable man to believe that the plaintiff did consent for her son so to contract,” etc. This part of the charge was objected to, and the point reserved by bill of exceptions. We see nothing in the evidence justifying that charge. During the entire two weeks of her son’s employment as brakeman, the mother was sick and confined to her room. No reasonable man, knowing the facts, would have felt authorized to act on the belief that the son had the mother’s consent, nor do we think there was evidence tending to show such conduct, sufficient to support a verdict against plaintiff on that issue. Tet, looking at the final part of the court’s charge, we are forced to the conclusion that the verdict of the jury must have been based on their finding against plaintiff on this issue. That part of the charge left them no alternative but to give plaintiff a verdict, unless they found that she had actually consented to the employment, or so conducted herself in reference to her son’s occupation, as to induce a reasonable man to believe that she did consent; for that the boy “was placed in a position of danger, and received thereby an [562] injury from which he died,” were facts clearly apparent. That the position of brakeman is one of danger is a matter of common knowledge, requiring no proof, and it was not denied that plaintiff’s son was placed in that position by defendant’s servants, and received thereby an injury from which he died. The plaintiff’s testimony that she never, directly or indirectly, consented to the employment, stood uncontradicted and uninvalidated in any way. That she, after her son’s death, received his wages, seems to us to be of little significance. We think it apparent that the jury were misled by the charge of the court into giving undue weight to plaintiff’s conduct, or failure to notify the company of her dissent, whilst she was sick and confined to her room. The evidence as to her conduct was, in our opinion, insufficient to call for the charge, or to support the verdict, and for these reasons the judgment will be reversed and the cause remanded. The employment of a boy only fifteen years of age in the hazardous position of brakeman, if without the consent of his mother and only parent, was a wrong done to that mother, and unless the boy had sufficient discretion to comprehend and guard against the dangers of the employment, when fully explained to him, as they should have been by the employer, such a contract would not place him in the position of an employee, or preclude a recovery for injuries suffered from the negligence’of a co-employee. R. R. v. Miller, 49 Tex., 322; 51 Tex., 274; Coombs v. New Bedford Cordage Co., 102 Mass., 572; Hill v. Gust, 55 Ind., 45; 2 Thompson on Negligence, p. 977, sec. 8, and authorities cited. A minor may be of sufficient age and discretion to justify his employment as a brakeman. 51 Tex., supra. Whether this boy of fifteen years could have been properly employed in that position, was, we think, a question [563] of fact for the jury; not, as appears to have been assumed in the trial, one of law for the court. 2 Thompson on Negligence, supra. The judgment is reversed and the cause remanded. Reversed and1 remanded. [Opinion delivered March 29, 1881.]