73 S.E. 198 | N.C. | 1911
Action to recover damages for the death of William Gray (504) Haynie, plaintiff's son, killed while in the employ of the defendants, who were constructing a dam across French Board River.
At the close of the evidence for plaintiff a motion to nonsuit was sustained, and from the judgment rendered the plaintiff appealed. *396 The evidence offered by plaintiff tends to prove that his son, the intestate, aged 13 years, was killed in the engine-room of defendants, situated on the west side of the French Broad River, about 12 July, 1910, by falling on the belt connected with the engine. The evidence tends to prove that the boy was employed by defendants Willard Son as a water carrier for the men engaged on the east side of the river, in building a railroad track, and that on the west side of the river were situated all the engines and machinery for blasting and moving rock, etc.
The evidence shows that the time the boy was killed the engineer in charge of the engine was Raymond Turner, aged 20. The boy was killed by falling on the belt; the belt threw him off between the belt and the wall; his skull was cracked, his leg broken, and he was mashed to pieces and died in four hours.
The boy had often been seen playing around the belt by Turner, the engineer, and Correll, the foreman, and he was notified of the danger, but kept on playing around the belt. The evidence tends to show further that C. R. Willard knew of the boy's conduct, and that the engineer and Correll had repeatedly warned the boy.
The foundation of the plaintiff's action is the allegation that his son was non sui juris, inexperienced and incapable of appreciating great danger, and, by reason of his youth and inexperience, careless in incurring danger; that he hired his son to defendants to work upon the east side of the river as a water carrier, away from the dangerous machinery, and he should be protected from such dangers by the defendants." (505) Plaintiff avers that this agreement was violated by defendants and his son permitted to go in the engine-house on west side of the river and to be around and about the machinery, in consequence of which he was killed.
The plaintiff does not base his claim upon any defective machinery, but upon a distinct violation by defendants of the contract of hiring. Upon the allegations of the complaint the burden rests upon plaintiff to show a breach of the contract and that it was the proximate cause of his son's death.
The plaintiff testified that he consented to the employment of his son by defendants for the purpose of carrying water on the east side of the river, and that he forbade them to let his son go on the other side where the machinery was; that the foreman promised that his son would be kept at work on the east side, and that he would see to it.
It is well settled that the father may stipulate as to the kind of work his child may be employed in (unless forbidden by statute), and the *397
consent of the parent that the child may be employed at one kind of labor is not consent that he be placed in another and a more dangerous kind of work. Braswell v. Oil Co.,
The sum and substance of the many cases cited in those notes are that it is a general rule that an employer putting a minor servant, against his parent's consent, to do work by which the child is injured, commits an actionable wrong for which the employer is liable, although there is no other evidence of negligence upon his part. R. R. v. Fort, 17 Wallace, 553, and cases cited in Rose's notes annotating this case. And under such circumstances it is also held that the minor servant's contributory negligence is no defense to such action. Marbury (506)Lumber Co. v. Westbrook,
As illustrating this doctrine, we may refer to cases in ante-bellum days where slaves were hired out to perform certain kinds of work and within certain limits, and the owner was permitted to recover damages for a breach of the contract because of injury to the slaves. Slocumb v. Washington,
In the brief of the learned counsel for the defendant it is contended:
1. That plaintiff failed to show that defendants violated any duty to plaintiff's intestate. The evidence, if believed, shows that defendants violated the contract of hiring.
2. That there is no evidence that any act or omission of defendant was the proximate cause of the boy's death. From the evidence it is a just inference which a jury may draw that if the defendants had carried out the agreement and kept the boy away from the machinery or returned him to his father, the injury would not have occurred.
3. That all the evidence shows that the boy was guilty of negligence and disobedience of orders in going into the engine-room where he was killed.
To guard against that was the very reason why the plaintiff restricted his child's employment and required the defendants to confine him to the east side of the river. Under such circumstances the defendant cannot avail itself of such defense. Marbury Lumber Co. v. Westbrook, supra.
We do not mean to hold that the defendants became insurers of the intestate's life, but if the agreement be as testified to by plaintiff, it was the duty of defendants to use due diligence and care to keep him away from the machinery and at the work he was hired to perform or else to return him to his father. *398
It may be that the father waived the terms of the agreement and acquiesced in his son working on the west side of the river, but the burden would be on defendants to show that, unless the facts appear from the plaintiff's own evidence.
The judgment of nonsuit is set aside.
New trial.
Cited: Ensley v. Lumber Co.,
(507)
