Flores v. Steeg Printing & Publishing Co.

• Decision Date: 25 February 1918
• Docket Number: 22768
• Citation: 142 La. 1068,78 So. 119
• Parties: FLORES et ux. v. STEEG PRINTING & PUBLISHING CO
• Court: Louisiana Supreme Court

78 So. 119

142 La. 1068

FLORES et ux. v. STEEG PRINTING & PUBLISHING CO

No. 22768

Supreme Court of Louisiana

February 25, 1918

SYLLABUS

(Syllabus by the Court.)

(1) The Chiled Labor Act, numbered 301 of 1908, p. 453, forbids the employment of children under 14 years of age in factories etc., and provides a penalty for violation of the act.

(2) The act forbids the employment of children over 14 and under 16 without the production of an age certificate, and a penalty is imposed for a violation of the act.

(3) In a suit for damages resulting to a child over 14 and under 16 in the course of his employment, contributory negligence may be pleaded and proved by the defendant. O'Niell, J., dissenting.

Sanders, Brian & Sanders, of New Orleans, for appellants.

Farrar, Goldberg & Dufour and Dufour & Janvier, all of New Orleans, for appellee.

O'NIELL, J., dissents.

OPINION

SOMMERVILLE, J.

Plaintiffs sue defendant in damages for the death of their son, aged 15 years and 5 months. They allege that he was originally engaged as messenger boy by defendant, and that he had been transferred to the pressroom by defendant, without their knowledge or consent; that he was there engaged in cleaning and wiping off printing presses at a time when electric motors were operating and revolving a shaft in the workroom at a high rate of speed; and that he was killed by said shaft. They charge that the employment by defendant of their son at a dangerous task, without their consent, and without an inspector's certificate as to his age, constituted a violation of the child labor law of the state; that the requiring of their minor son to wipe off and clean printing presses in close proximity to a revolving shaft was likewise gross negligence; that the operating of the shaft with keys and screws protruding at an open space between two presses at the place where the minor was killed was likewise gross negligence.

Defendant answered and admitted the employment of the minor without requiring the factory agent's certificate. It also admitted the death of the minor at the time and place alleged. It denied that the minor was engaged at or on a printing press at the time of the accident, or at a dangerous occupation, or in a dangerous place. It further pleaded contributory negligence.

There was judgment for defendant, and plaintiffs have appealed.

The evidence is that the deceased boy was cleaning a box of bolts on the floor, and in a safe place, at the time of the accident. The occupation was not dangerous. He was not cleaning a printing press, and was not in close proximity to a revolving shaft while working with the bolts. The evidence also shows that the shaft on which the boy was killed was not joined together with protruding keys or screws. It is also shown that the shaft was flanked on one side by presses and boxes so as to prevent one coming into contact with it, except in small spaces on either side of the stove, and that one would have to squeeze through these places to come into contact with or to jump over the shaft. The boy left the bolts he was working with, went through the space by the stove, attempted to jump over the shaft, and he was killed.

Plaintiffs appear to rely upon the violation of the child labor law by defendant in failing to require a factory inspector's certificate as to his age before employing their minor son. They argue that such failure was negligence per se on the part of defendant, and that it cannot therefore allege contributory negligence on the part of the boy.

This point has been considered by the court, but it has not been definitely disposed of.

In the case of Darsam v. Kohlmann, 123 La. 164, 48 So. 781, 20 L. R. A. (N. S.) 881, the law on the subject was stated, and defendant's evidence of contributory negligence on the part of the minor was received and considered, and the case was decided in favor of the defendant.

In the course of the opinion the court quoted from 4 Thompson on Negligence (2d Ed.) § 3827, as follows:

'* * * The view which more nearly comports with judicial analogies is that such unlawful employment of a child does not, per se, constitute negligence which will render the employer liable for injuries to the child, where such employment is not the direct or proximate cause of the injury.'

That view of the learned author is sustained by a consensus of opinion. Thus:

'When it appears that the violation of a statute, ordinance, or municipal regulation was a contributing cause to produce the injury complained of, then such statute * * * is competent evidence to charge the defendant with negligence. But such evidence is incompetent, as being immaterial, if the violation of the statute did not contribute to produce the injury. Buswell on Personal Injuries (2d Ed.) 185 -- citing Wakefield v. Conn. & P. R., 37 Vt. 330, 86 Am. Dec. 711; Steves v. Oswego & Syracuse R. R., 18 N.Y. 422; Brooks v. Buffalo & N. F. R. R., 25 Barb. (N. Y.) 600; Dascomb v. Buffalo & State Line R. R., 27 Barb. (N. Y.) 221; Evans v. American Iron Tube Co. (C. C.) 43 F. 519.

'The fact that the defendant's violation of duty consists in the violation of a statute will not relieve the plaintiff of the obligation of showing that he was in the exercise of due care -- citing Taylor v. Carew Mfg. Co., 143 Mass. 470, 10 N.E. 308; Nosler v. Chicago, B. & Q. R. R., 73 Iowa 268, 34 N.W. 850; Ryall v. Central Pacific R. R., 76 Cal. 474, 18 P. 430; Hudson v. Wabash R. R., 101 Mo. 13, 14 S.W. 15. * * *

'In many jurisdictions statutes have been enacted which impose upon masters certain duties in relation to their servants. While it is well settled that the violation of these provisions is negligence per se, and actionable, if injuries are sustained by the servants in consequence thereof, they are nevertheless not so construed as to abrogate the ordinary rules relating to contributory negligence, which 'is available as a defense, notwithstanding the statutes, unless they are so worded as to leave no doubt that this defense is to be excluded.' A. & E. Enc. of Law (2d Ed.) vol. 20, p. 151. See, also, 26 Cyc. p. 1091.'

In the Darsam Case, supra, the court say:

'The generally accepted view in regard to the relations between minors and their employers is, as we think, correctly stated as follows: 'Persons who employ children to work with or about dangerous machinery, or in dangerous places, should anticipate that they will exercise only such judgment discretion, and care as is usual among children of the same age under similar circumstances, and are bound to use due care, having regard to their age and experience, to protect them from dangers incident to the situation in which they are placed; and as a reasonable precaution, in the exercise of such care in that behalf, it is the duty of the employer to so instruct such employes concerning the dangers connected with their employment which, from their youth and inexperience, they may not or are...