Ward v. Odell Mfg. Co

• Decision Date: 09 June 1900
• Citation: 126 N. C. 946,36 S.E. 194
• Court: North Carolina Supreme Court
• Parties: WARD. v. ODELL MFG. CO.

126 N. C. 946

36 S.E. 194

WARD.

v.ODELL MFG. CO.

Supreme Court of North Carolina.

June 9, 1900.

INJURY TO MINOR SERVANT—INSTRUCTIONS.

An instruction in an action for an injury received by a child of 11 years, that, "if he did not fully realize and know the danger he incurred, " he was guilty of no contributory negligence, is not ground for reversal, because of failure to insert the words "if any, " where the evidence that he was injured near the place in question is conclusive that there was danger, and the jury were in no respect prejudiced by the omission. By divided court.

Appeal from superior court, Iredell county; Shaw, Judge.

Action by Ebbitt Ward, by next friend, against the Odell Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed by divided court.

B. F. Long and W. J. Montgomery, for appellant.

Armfleld & Turner and H. P. Grier, for appellee.

CLARK, J. Mr. Justice FURCHES, having been of counsel, does not sit; and, the court being equally divided, the judgment below is affirmed. Boone v. Peebles (at this term) 36 S. E. 193, and cases there cited.

The only error found by the other two members of the court as to this, the second trial below, is the following instruction: "If the jury should find from the evidence that, at the time of the injury complained of the plaintiff was only eleven years of age, and that on account of his tender years, his immaturity and inexperience, he did not fully realize and know the danger he incurred in passing said workbench where wires were being cut, he was guilty of no contributory negligence in so doing." If this instruction had read, "did not fully realize and know the danger, if any, he incurred, " it is conceded there would have been no error. But the jury could not possibly have been misled into thinking that the judge meant to decide the issue of fact that there was danger, when he had repeatedly told them that this was a question of fact for the jury. The whole charge must be construed together, and not a detached sentence. State v. Boon, 82 N. C. 637. This is not the case where the judge has given two contradictory instructions as to the law, in which case the jury may well be confused as to which to take. But here the whole charge, taken together, is per-fectly intelligible and consistent Juries are presumed to be intelligent and honest, and are as much an integral part of our court system as the judges, and, in their department, probably make as few mistakes in finding the facts as the judges do in finding the law or in applying it. Besides, the fact that the plaintiff was injured and lost his eye at or near that bench is conclusive that there was danger ("Res ipsa loquitur"), and the jury in no aspect were prejudiced by the inadvertent omission of the words "if any." The judge very properly adverted to the immaturity and inexperience of a child 11 years of age employéd in a large manufactory filled with dangerous machinery, and told the jury correctly that, if that was the cause of his approaching the danger, he was not guilty of contributory negligence. The humanity of the age has, in very many of the states, placed on the statute books laws forbidding the employment of children under 14 years of age in factories. So far as these statutes are based upon the inhumanity of shutting up these little prisoners 11 1/2 to 12 hours a day (the ordinary factory hours in this state, according to the state's official publications) in the stifling atmosphere of such buildings, or depriving them of opportunity for education, or using the competition of their cheap wages to reduce those of maturer age, these are arguments on matters of public policy which must be addressed solely to the legislative department. But there is an aspect in which the matter is for the courts; that Is, whether it is negligence per se for a great factory to take children of such immature development of mind and body, and expose them for 12 hours per day to the dangers incident to a great building filled with machinery constantly whirring at a high speed. The children, without opportunity of education, without rest, their strength overtaxed, their perceptions blunted by fatigue, their intelligence dwarfed by their treadmill existence, are overliable to accidents. Can it be said that such little creatures, exposed to such dangers against their wills, are guilty of contributory negligence, — the defense here set up? Does the law, justly interpreted, visit such liability upon little children? From the defendant's brief it would seem that this child had been put to work in the factory at 8 or 9 years of age, as it states he had been working there over two years when injured. Whether they are thus imprisoned at work too early by the necessities of their parents or not, it is not the consent of the children. It is not law, as the appellant's counsel insists, that the factory company is not liable, because the father hired the child to the company. It is the child's eye which was put out, not the father's. The father could not sell his child, nor give the company the right to expose him to danger. The factory superintendent put these children to work, knowing their immaturity of mind and body; and when one of them, thus placed by him in places requiring constant watchfulness, is injured, every sentiment of justice forbids that the corporation should rely on the plea of contributory negligence. The judge certainly committed no error in leaving it to the Jury to find that there was no contributory negligence, if the child incurred the danger which put out his eye by reason of his ignorance arising from his immaturity of years and inexperience. Affirmed.

MONTGOMERY, J. The court is equally divided in opinion, —Justice FURCHES not sitting on the hearing, —and the judgment below for that reason stands. I desire, however, to express my views on the merits of the case. The plaintiff, a minor, brought, through his next friend, this action to recover of the defendant damages for a personal injury which he sustained through the alleged negligent keeping and use of a workbench and tools by the defendant in its cotton mills, where the plaintiff was employéd. The room in which the plaintiff was hurt was a very large one, contained nearly 200 looms, and was divided by an imaginary line into two equal sections. Wood was the loom fixer or boss of one section, and Suther of the other. The plaintiff worked under the supervision of Wood, —his work being, in his own language, "to carry quills from the weaver room upstairs to the quiller room to be refilled"; and the workbench at which he was hurt was in the corner of the room, and in the section under the control of Suther. Upon this workbench (about three feet wide by six feet long) tools of various kinds were kept for use in the factory, —for mending anything that broke, and especially for fixing and mending pattern chains and picker sticks. The plaintiff testified that he was. on the day of his injury, sent out of his section by Wood to Suther's section to do the work of the quiller boy in Suther's section, who was sick or absent, and that while engaged in the work assigned him he had to go up an alley to the workbench, and then turn and go down another alley to get quills. He further testified that "Dan Ryan was cutting the wire for pattern chains with a hammer and cold-chisel, and I was passing by the workbench with a turn of quills, and looked up to see what time It was, and just as I looked up a piece or scale of wire struck me in the eye." He further said that he had frequently, before that time, seen Dan Ryan engaged in the same work at the bench. Dan Ryan's testimony was, in substance, that he had been employéd by the defendant for seven or eight years, and his duty was that of "rolling beams, " and when he put on a warp for Ward he built pattern chains; that, while he was cutting wire for this latter purpose with a chisel and hammer, he saw plaintiff rubbing his eye, and at the same time declaring that something had gotten into it This witness further said: "Iput wire in vise and struck it with chisel, and it flew off. Wood ordered me to build chains, and I had to take it to the bench to build it. Usually they have wires cut, but none were there this time. The man whose business it was to cut wires had nippers. My regular business was rolling beams. Wood did not tell me to build this, but he told me whenever he was busy to build pattern chains and put them on. The men furnished me no nippers, but when I needed them I went to Wood to get them if he was in there. They kept chisel and hammer there. Wood was not in there at this time." There was other evidence to the effect that the cold-chisel, vise, and hammer were kept on the bench, and used for cutting wire. Wood testified, for the defendant, that he did not send the plaintiff to Suther's section, and that he had never ordered or allowed Dan Ryan to use the bench and tools for any purpose. Suther testified that Ryan never used the bench in work hours, and at no time for the company; that the plaintiff was not in his section during work hours on the day on which he was hurt. This witness further testified that during the dinner hour "Ryan and plaintiff were standing at the work bench. I heard Ryan say to Ward, he had better go away, —'This might fly off and hurt you;' a...