Elk Cotton Mills v. Grant
| Decision Date | 15 October 1913 |
| Citation | 79 S.E. 836,140 Ga. 727 |
| Parties | ELK COTTON MILLS v. GRANT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The employment of a minor under the prescribed age in a factory in disobedience of the statute prohibiting such employment is negligence per se, and, if injury to such child proximately results from the employment, a right of action in its favor arises.
The statutory prohibition against employing children under a prescribed age in a factory excludes the defense of the assumption by them of risks incident to such employment.
In a suit by a child alleging injury as the result of his employment in a factory in violation of a statute prohibiting the employment in factories of children under a prescribed age, if the injury was not the result of the employment, but of some wholly independent cause disconnected from his employment, there can be no recovery.
In such a case the defense that the child was guilty of such negligence as to prevent a recovery is also open to the defendant.
(a) Under the statute of this state, if the plaintiff is not guilty of such negligence as will prevent a recovery, but is guilty of some negligence, the doctrine of diminution of damages may also be invoked.
The diligence required of a child of tender years is not to be measured by the ordinary care required of an adult; but due care in such a child is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation.
Where suit was brought for a personal injury to a child and on the trial, about 21/2 years after its occurrence, the plaintiff testified in substance that by reason of the injury he lost his thumb and forefinger and about half of his right hand that he could do a little work with that hand, that he was confined to the house for more than a week after he was hurt and could do no work for two or three months, and that his injury still caused him pain at night, there was enough evidence to authorize a charge on the subject of pain and suffering, mental and physical, which he might have suffered in the past, and which he might suffer in the future.
(a) This is true although the witness added to the testimony above mentioned; "My hand does not hurt me now unless I hurt it in some way; my hand is not so easy to hurt."
None of the grounds of the motion for a new trial which are not specially mentioned required a reversal.
(Additional Syllabus by Editorial Staff.)
The words "contributory negligence" are generally employed to express a degree of negligence which will preclude a recovery. In this state the words are commonly used to express negligence which will diminish, but not defeat, a recovery, under the doctrine of comparative negligence.
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Action by Charlie Grant, etc., against the Elk Cotton Mills. Judgment for plaintiff, and defendant brings error. Affirmed.
Maddox, McCamy & Shumate, of Dalton, for plaintiff in error.
M. C. Tarver, of Dalton, for defendant in error.
LUMPKIN, J. (after stating the facts as above).
1. By the Civil Code of 1910, § 3143, it is declared that no child under 10 years of age shall be employed or allowed to labor in any factory or manufacturing establishment in this state under any circumstances. By section 3144 it is declared that no child under 12 years of age shall be so employed, or allowed so to labor, unless it is an orphan, and has no other means of support, or unless a widowed mother or an aged or disabled father is dependent upon the labor of such child. In the latter event the father is required to file in the office of the company or establishment a prescribed certificate from the ordinary. A disobedience of the act is made a misdemeanor. Section 3149. Here the plaintiff was 11 years old He was not an orphan, and there is no claim that he had a widowed mother or an aged or disabled father dependent upon him. On the contrary, the defendant set up that his father was employed in the defendant's factory. Under these circumstances, the employment of the plaintiff was a violation of the law.
The child labor law was enacted for a useful purpose. It was intended to be obeyed. A violation of the statute by hiring the plaintiff, a boy of 11 years of age (and not within the excepted class), to work in the defendant's factory constituted negligence per se as to him, and authorized a recovery for a personal injury sustained by him as a proximate result of such employment. Where a statute prescribes an absolute duty for the benefit of a class of persons, the violation of the statutory duty resulting in injury to one of such persons authorizes a recovery without other negligence, and the expression "negligence per se" has quite generally been used to characterize such a breach of duty. It has often been so employed in this state. In 1 Thompson on Negligence, § 10, it is said that: "Where the Legislature of the state, or the council of a municipal corporation, having in view the promotion of the safety of the public, or of individual members of the public, commands or forbids the doing of a particular act, *** the general conception of the courts, and the only one that is reconcilable with reason, is that the failure to do the act commanded, or the doing of the act prohibited, is negligence as mere matter of law, otherwise called negligence per se, and this, irrespective of all questions of the exercise of prudence, diligence, care, or skill, so that, if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains to be done is to assess the damages." While a few cases have held that the violation of a statutory duty is only "evidence" of negligence, and not negligence per se, such decisions, though rendered by courts of high standing, will not bear the test of reason, and this court has frequently held to the contrary. Atlanta & West Point Railroad v. Wyly, 65 Ga. 120; Louisville & Nashville R. Co. v. Hames, 135 Ga. 67 (4), 68 S.E. 805; 1 Hopkins' Pers. Inj. (2d Ed.) §§ 18, 125.
2. The statutory inhibition under consideration necessarily excludes the doctrine of the assumption of risks of the employment, which might otherwise apply. To hold differently would be substantially to destroy the efficacy of the statute.
3, 4. There remain the questions whether the violation of the statutory duty was the proximate cause of the injury, and whether the plaintiff was guilty of such negligence as to debar him from a recovery, or to lessen the recovery, under our statute. If the breach of a statutory duty in no way proximately causes an injury, its violation will not authorize a recovery. To illustrate by reference to suits against railroad companies for personal injuries at road crossings: The law requires a railroad company to erect blow posts at a certain distance from public road crossings over its tracks, and requires the engineer to blow the whistle and slacken the speed in approaching such crossings. It has been held that a violation of these duties constitutes negligence per se as to one passing over such a crossing. If, however an injury is not the result of the operation of the train at all, but results from some entirely different and disconnected cause, the violation of the duty would not authorize a recovery. It may be said that the mere failure to erect a blow post or...
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