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 stоod 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 amеnded 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 ascеrtained 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, аnd 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, althоugh 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 evеry 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 cаpable 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,
Bor was the plaintiff while at work аcting in violation of law. The statutes here under consideration are plainly different from those before the court in Moran v. Dickinson,
The violation of the statute by the defendant rendered its negligence a question оf 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,
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.
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 lеaves 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.
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,
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 thаt 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.
Notes
Strafford v. Republic Iron & Steel Co.