Burke v. Big Sandy Coal & Coke Co

• Citation: 69 S.E. 992,68 W.Va. 421
• Court: Supreme Court of West Virginia
• Decision Date: 13 December 1910
• Parties: BURKE v. BIG SANDY COAL & COKE CO.

69 S.E. 992

68 W.Va. 421

BURKE

v.BIG SANDY COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

Dec. 13, 1910.

Rehearing Denied Jan. 11, 1911.

(Syllabus by the Court.)

Master and Servant (§ 95^*)—Employment of Minor—Violation of Statutes—Negligence.

A case controlled by the principles announced in Norman v. Virginia-Pocahontas Coal Company, 69 S. E. 857.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 160; Dec. Dig. § 95.*]

Error to Circuit Court, McDowell County.

Action by C. W. Burke, Jr., against the Big Sandy Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Anderson, Strother & Hughes and Stokes & Sale, for plaintiff in error.

John L. Stafford, Douglas W. Brown, B. B. Campbell, and W. L. Taylor, for defendant in error.

ROBINSON, P. The plaintiff's cause of action is a personal injury sustained by the defendant's violation of the statute in force at the time of the injury inhibiting the employment of boys under twelve years of age in coal mines. The statute has since been amended, raising the age to fourteen years. As amended, we dealt with it in Norman v. Virginia-Pocahontas Coal Company, 69 S. E. 857, decided at this term. The principles enunciated in that case apply to this one.

The statute as it stood before its re-enactment whereby the age was raised to fourteen years is found in Code 1906, § 412. Defendant submits that this provision was in fact repealed by the later enactment of Code 1906, § 455. But the two statutes are entirely consistent—the one is in no wise repugnant to the other. Section 412 was fully in force at the time of the injury to plaintiff.

The argument that the statute is unconstitutional is not tenable. Similar statutes have invariably been upheld. It is clearly within the power of the state so to protect its youths from dangerous occupations.

The instruction given the jury on behalf of the plaintiff is a proper one. It is directly in accord with our former decision that a violation of the statute inhibiting the employment of boys in coal mines constitutes actionable negligence whenever that violation is the natural and proximate cause of an injury. Defendant's instruction No. 11 is an erroneous one, but wholly favorable to the defendant. It would give the employer protection though he failed to secure the affidavit of the parent or guardian and yet cannot establish that the boy was over twelve years of age. Of course the defendant cannot complain as to the giving of this...