Canton Cotton Mills v. Edwards

Lamar, J. The age of majority and the age under which there can be no criminal responsibility have been arbitrarily declared by statute. But neither nature nor the courts'have fixed any definite age at which children attain the . capacity to work. In some children the mind outruns the body and in others the body outgrows the mind. Some are weak and undeveloped at the age of fourteen, and others are strong and vigorous at ten. Some at an early age can hunt, drive, ride, swim and work in many occupations, with ordinary safety, while others of the same age, with even [449] greater physical strength, by reason of want of experience would be unable to engage in the same sports or labors without serious risk. The question of capacity, therefore, is not to be determined as a matter of law by the courts, but as a matter of fact by the jury, applying the principle involved in the Civil Code, § 2901, which declares that “Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.” The petition alleged that the plaintiff was ten years old, ignorant of' the character of the machine and of the danger of working therewith as he had seen others do; that he had not been warned; that he was incapable of appreciating, remembering, or acting upon any warnings that might have been given him; and that the company was not only negligent in failing to warn plaintiff, but also in failing to guard its machinery so as to make the factory safe as a place in which to work. These allegations made it proper to overrule the demurrer. Compare Evans v. Josephine Mills, 119 Ga. 448. Judgment affirmed. All the Justices concur.