209 Mass. 489 | Mass. | 1911
There was evidence tending to show that the plaintiff at the time of his injuries was less than fourteen years old, and had been in this country about seven weeks, during four of which he had been in the service of the defendant. He had never before worked in a factory, and could not speak or read English. While waiting for his work, which was about spinning mules in a cotton factory, he stood with his back toward some gears covered by a guard or shield, on which one of his hands rested. In some way not exactly explained, this hand got beyond or under the guard, and was cut by the gear. No instructions or warning were given him as to such a danger. The plaintiff testified that he had never looked to see, and did not know that there were gears under the guard.
■ R. L. c. 106, § 28, as amended by St. 1905, c. 267, (see now St. 1909, c. 514, § 56,) prohibited the employment in any factory, workshop or mercantile establishment, of a “ child under the
It becomes necessary to determine the purpose of this statute. That may be ascertained by the purview of the Legislature in the language it employed, having regard to prevailing social conditions, the evil attacked, the remedy provided, the practical results likely to flow from one interpretation or the other, and the public policy established. Although this statute has educational as well as economic aspects, and may have been enacted in part to supplement the general law as to compulsory school attendance, it is not directed exclusively against illiteracy, as is St. 1911, c. 310, for example. The titles of the various statutes, of which the present is the successor, as well as its context in the' chapter of the Revised Laws, entitled “ Of employment of labor,” indicate that one of its chief purposes is to govern labor conditions. The title of the first statute touching this subject was “ An Act in relation to the employment of children in manufacturing establishments,” St. 1866, c. 273. In most if not all subsequent revisions of this act, the words, “ employment of children.” or equivalent language have been used. St. 1876,
In ordinary actions for personal injury, the plaintiff must prove, as the first branch of his case, that he was himself in the exercise of due care. This involves certain phases of the subsidiary questions of assumption of risk and contributory negligence. Minors of tender years, although held to the same rule of law in its general statement as adults, are yet required to exercise only that degree of care which is naturally incident to their youth, inexperience and immature stage of mental development. Although eases have arisen sometimes where the comprehension by the minor of the risks of the employment has been so plain as to warrant a ruling of law, usually that question and the duty and extent of warning resting upon the defendant have raised inquiries of fact. It is common knowledge that children under the age of fourteen are lacking in prudence, foresight and restraint, and that their curiosity and restlessness have a tendency to get them into positions of danger. There is some point in every life where these conditions are present in such degree as to deprive the child of capacity to assume risk intelligently, or to be guilty of negligence consciously. That point varies in different children for divers reasons. There is no hard and fast rule that at any particular age a minor is presumed to be able to comprehend risks or to be capable of negligence. Extreme cases can be stated which obviously fall on one side or the other of the line. In some jurisdictions it has been held that prima fade a child under fourteen years of age is presumed not to be capable of contributory negligence. Tucker v. Buffalo Cotton Mills, 76 S. C. 539, and cases cited. Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336. But the sounder doctrine seems to be that age is an important though not decisive factor in determining capacity, and that the decision of that question is not helped or hampered by any legal presumption. This is the law of this Commonwealth. Ciriack
Bor was the plaintiff while at work acting in violation of law. The statutes here under consideration are plainly different from those before the court in Moran v. Dickinson, 204 Mass. 559, in that they impose no penalty upon the child for being employed. The only person subjected to punishment under St. 1906, c. 499, § 1, is one who “ employs ” or “ procures or, having under Ms control a minor under such age, permits such minor to be employed.” This language as well as the general purpose of the statute excludes the idea that the minor Mmself is included. The circumstance that this plaintiff asked for his own employment does not prevent him from invoking whatever protection the statute may throw around Mm, nor from relying upon whatever liability may spring from its violation by the defendant.
The violation of the statute by the defendant rendered its negligence a question of fact for the consideration of the jury. It was said in Bourne v. Whitman, ante, 155, “ It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator as to all consequences that the statute was intended to prevent.” The subject is there discussed at length and the reasonableness of this rule clearly established. The statute does not go to the extent of conclusively establishing negligence as a part of the penalty for its violation. It is not so drastic in its terms as that under consideration in Dudley v. Northampton Street Railway, 204 Mass. 443. It is the ordinary penal statute enacted for the protection of a particular class in the community. But it does not mean that a defendant who employs a child in violation of its terms is thereby conclusively rendered liable for every accident which occurs to him, while in the service. It is conceivable that injury might result wholly from the minor’s own act so obviously negligent, that it could not be argued intelligently not to have been within his comprehension and quite disconnected with his work. Under such circumstances there could be no recovery. The form of the prohibition in this statute is like that which inhibits travelling by a horse drawn sleigh without bells. R L. c. 54, § 3. Yet it cannot be contended that one violating this statute is rendered thereby necessarily responsible civilly for the damages of an
The statute has, however, the further effect of preventing the defendant from shielding himself behind the defense of contractual assumption of risk. The reason for this is that this branch of the doctrine of assumption of risk rests upon an implied term of the contract of employment to the effect that the employee assumes all the obvious risks of the business, apparatus and place of his work. Murch v. Wilson's Sons Co. 168 Mass. 408. Crimmins v. Booth, 202 Mass. 17, 22. The contract of employment, however, in the case at bar was absolutely prohibited by the terms of the statute, and was therefore an illegal act on the part of the defendant. The defendant cannot be permitted to show an illegal contract and his own consequent criminal guilt in order to interpose a defense. Any contractual assumption of risk in the light of the fact that the plaintiff was under fourteen years of age would reveal as an essential element the violation of a penal statute. No court consciously will enforce, directly or indirectly, an illegal contract. O'Brien v. Shea, 208 Mass. 528, and cases cited. The phrase, “ assumption of risk,” is sometimes used in another sense.as applicable to the intentional and voluntary continuance of labor under conditions, the dangerous nature of which is fully comprehended, both as to its character, extent, and degree of capacity to harm. When used in this sense sometimes it is resolved into such conduct as is equivalent to an agreement on the part of the employee to relieve the employer from a duty which would otherwise rest on him. Leary v. Boston & Albany Railroad, 139 Mass. 580, 587. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. O'Toole v. Pruyn, 201 Mass. 126, 129. See Thomas v. Quarter
There is nothing in the statute, however, to indicate an intent that the defense of contributory negligence should be abolished. It does not purport to regulate, further than is implied by other statutes of like character, the civil liability arising between the parties. Having stamped the act of the employment of minors under the prohibited age as criminal and thereby available as evidence of negligence to one whose civil rights are affected, it leaves undisturbed in any other respect the principles by which liability may be enforced and defense may be established.
This is the general rule as to the interpretation of penal and inhibitory statutes, and has been applied to a wide variety of cases. Taylor v. Carew Manuf. Co. 143 Mass. 470. Bourne v. Whitman, ante, 155, and cases cited. Schlemmer v. Buffalo, Rochester & Pittsburg Railway, 220 U. S. 590, 596. Delk v. St. Louis & San Francisco Railroad, 220 U. S. 580, 587. Denver & Rio Grande Railway v. Norgate, 72 C. C. A. 365; S. C. 202 U. S. 616. Erdman v. Deer River Lumber Co. 104 C. C. A. 482. To give this statute a broader effect would be to go outside the usual canons of statutory construction. There appears to be no sound reason for establishing an exception respecting .particular enactments, which have no especially distinguishing features. If the Legislature had intended to change the fundamental rules of the law of negligence in the present instance, the expression of such an intention would have been simple. The great weight of authority as to child labor statutes supports this view. Smith v. National Coal & Iron Co. 135 Ky. 671. Darsam v. Kohlmann, 123 La. 164, 171, 172. Queen v. Dayton Coal & Iron Co. 95 Tenn. 458, 465. Iron
The plaintiff is not entitled to recover unless the violation by the defendant of its statutory duty to him directly contributed to his injury. The breach of law upon which a plaintiff may found his right of recovery must be not merely a condition or an attendant circumstance, but a contributory cause. Newcomb v. Boston Protective Department, 146 Mass. 596. Moran v. Dickinson, 204 Mass. 559. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. The injury must be referable to the breach of the statute as a cause. There was sufficient evidence that the plaintiff’s damage was due to the act of the defendant in putting a minor of tender years at work in a position of dan
The result is that the plaintiff is entitled to go to the jury upon the question of his own due care. He must make out his case, as does the ordinary plaintiff in cases of negligence. ' He must also show that his injury resulted from the negligence of the defendant. He may establish this, however, by showing a violation by the defendant of the statute in question and by that alone, provided the violation be found to have contributed directly to the injury. Such proximate cause might arise from the fact that he was a child by reason of his tender years so restless, heedless and active as to be naturally incapable of appreciating the dangers of the position in which he was placed by the defendant. The defense, that the plaintiff assumed by contract the risks which surrounded him, is not open to the defendant. But the defense that the plaintiff contributed to his injury by failure to exercise the degree of care, which the normal child of his age, intelligence and experience ought to have exercised, is open to the defendant. The direction of a verdict for the defendant was error.
Exceptions sustained.
Strafford v. Republic Iron & Steel Co. 238 Ill. 371. American Car & Foundry Co. v. Armentraut, 214 Ill. 509. Koester v. Rochester Candy Works, 194 N. Y. 92. Marino v. Lehmaier, 173 N. Y. 530. [See however Lee v. Sterling Silk Manuf. Co. 134 App. Div. (N. Y.) 123.] Lenahan v. Pittston Coal Mining Co. 218 Penn. St. 311. Stehle v. Jaeger Automatic Machine Co. 220 Penn. St. 617; S. C. 225 Penn. St. 348. Sullivan v. Hanover Cordage Co. 222 Penn. St. 40.