| Ala. | Dec 15, 1909
Counts 1, 2, and 7 as amended were those upon Avhich the testimony was taken upon the trial. The first two rely upon the negligence of defendant (appellee )in omitting to warn and instruct plaintiff’s (appellant) nine year old child, inexperienced and immature, in reference to the dangers incident to her employment in defendant’s hosiery mill. The seventh count as amended ascribed the injury to the
The main question now presented for review is among those decided adversely to appellee on the previous occasion. It is, under pleas H and I, Avhether the consent of a parent, who sues for the loss of the services, etc., of his injured minor child, that the child engage in the hazardous employment in which it is injured, is chargeable with negligence, próxima,telv contributory to its injury, and, hence, be barred of recovery in such action for the loss of services, etc., where the complaint ascribes the injury to the negligence of the master. In reference to the insistence of appellee’s counsel, we have carefully reconsidered the question, and, after so doing, feel impelled to reaffirm the former ruling thereon in this case.
Reference to the numerous decisions of this court, cited and pressed upon our attention for appellee, will discover that none of them affirm the proposition that a parent’s consenting to the employment of his minor child in a dangerous business includes either the assumption of risk of injury therein or affords the basis for the imputation of contributory negligence on the part of the parent in any action by the parent, where the cause of the injury is ascrihable to the negligence of the master. The previous ruling rested, at least in part, upon the theory that the consent of the parent to the employment created a condition merely, and that the proximate cause for the injury Avas to be found in the negligent failure of the master to instruct and warn the child. The sequence, in cause of injury, cannot be ascribed to the original want of care of the consenting
Plea 3 avers the injury to have resulted proximately from dangers ordinarily incident to the' service, and hence was within the general issue pleaded, and might well have been stricken on motion. Counts 1 and 2 could only he sustained by proof of injury in consequence of the negligence charged in them, and the failure to warn and instruct the child were not of the dangers described in the plea.
Pleas H! and I would ground contributory negligence upon consent, with knowledge, of the plaintiff that his child engage in the dangerous service described. On the facts averred, these pleas were subject to the demurrers interposed. The court erred in overruling the demurrers to pleas H and I.
Counsel for appellee insist that these pleas were apt in reply to the averment of non-consent of plaintiff set forth in the first count. The plaintiff must prove his averment, even though unnecessarily incorporated therein, as a condition to a recovery. — Tenn. C., I. & R. Co. v. Crotwell, 156 Ala. 804, 47 So. 64" court="Ala." date_filed="1908-06-18" href="https://app.midpage.ai/document/tennessee-c-i--r-r-v-crotwell-7363577?utm_source=webapp" opinion_id="7363577">47 South. 64. But this fact will not serve to render that proximately contribut
A number of the charges given or refused, and the court’s action in respect to them, are assigned as error. What has been before said in reference to pleas H and I will serve to indicate the proper course for the court in dealing with charges touching that phase of the case.
Under the rule declared in Bube v. Birmingham R., L. & P. Co., 140 Ala. 275, 37 South. 285, 103 Am. St. Rep. 33, among other decisions here, the financial condition of the child is a proper element of the inquiry, in order that the jury may determine from the whole evidence the loss likely to be entailed upon the parent in consequence of the child’s injury; but this does not render proper an investigation of the source of the child’s estate, if such it has.
The testimony in reference to a recovery in another action by the child against this defendant should not have been admitted over plaintiff’s objection. Nor did the disposition made of their wages by sisters of plaintiff’s injured child tend to shed any light upon the issues in the case.
Nor was the matter of settlement of plaintiff’s guardianship of the injured child serviceable on any issue raised by the pleadings. It should not have been admitted over plaintiff’s objection.
We are not able to find any tendency in the evidence supporting material averments of count 7 as amended. The court did not err in giving the affirmative charge thereon, as requested by defendant.
The errors indicated require the reversal of the judgment and the remand ment of the cause.
Reversed and remanded.