Hauser v. Forsyth Furniture Co.
Decision Date | 07 November 1917 |
Docket Number | 360. |
Citation | 93 S.E. 961,174 N.C. 463 |
Parties | HAUSER v. FORSYTH FURNITURE CO. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Adams, Judge.
Action by James Hauser, by his next friend, Sallie Hauser, against the Forsyth Furniture Company. Judgment for defendant, and plaintiff appeals. New trial ordered.
The action was to recover damages for physical injuries suffered by plaintiff, a minor, when in the company's factory as an employé, contrary to the provisions of the statute (Pell's Revisal, § 1981b), and attributed also to positive negligence on the part of defendant. On denial of liability and plea of contributory negligence, the jury rendered the following verdict:
"(1) Was the plaintiff at the time of his alleged injury under 13 years of age, as alleged in the complaint? Answer: Yes.
(2) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.
(3) Did the plaintiff by his own negligence contribute to his injury as alleged in the answer? Answer: Yes.
(4) What damage, if any, is the plaintiff entitled to recover? Answer: Nothing."
Judgment on the verdict for defendant, and plaintiff appealed assigning for error the charge of his honor on the question of contributory negligence as follows:
J. C Wallace and Hastings, Stephenson & Whicker, all of Winston-Salem, for appellant.
Manly Hendren & Womble, of Winston-Salem, for appellee.
It was admitted on the hearing that the plaintiff, at the time he was injured, was not serving in the capacity of apprentice, and this being true, it is established by the verdict that plaintiff has been injured by the negligence of defendant company when he was at their factory as an employé, contrary to the provisions of our statute law (Pell's Revisal, § 1981b), and that recovery has been denied on the ground of contributory negligence. It is recognized with us that the defense of contributory negligence in proper instances may be available in these cases, but it also clearly held that the presumption is against it, and that, where a minor is injured when serving as an employé contrary to the provisions of the statute, the court should instruct the jury in this or some equivalent terms that the evidence should be considered and the issue determined in view of such presumption. Pettit v. Railroad, 156 N.C. 119, 128, 72 S.E. 195; Leathers v. Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L. R. A. (N. S.) 349; Rolin v. Tobacco Co., 141 N.C. 300, 53 S.E. 891, 7 L. R. A. (N. S.) 335, 8 Ann. Cas. 638. In Leathers' Case, supra, it was directly held that:
"Under the age prohibited by statute, the presumption is that the child injured while working in a factory or manufacturing establishment is incapable of contributory negligence, subject to be overcome by evidence in rebuttal under proper instructions from the court."
And in Rolin's Case on this subject:
And in the case of Pettit v. Railway, supra, Associate Justice Allen gives a full and careful synopsis of several decisions of the court on the subject, including Starnes v. Manufacturing Co., 147 N.C. 563, 61 S.E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. Cas. 470, and others, and closes with the statement relevant to this question:
From a perusal of these decisions it will appear that a presumption against contributory negligence in cases of this character is recognized with us as an essential feature of the doctrine of contributory negligence, and a charge, therefore, which fails to make any reference to it, but instructs the jury just as in cases of adults, should be held for reversible error. It is not a mere omission in reference to a "subordinate feature of the cause or some particular phase of the testimony," but is to be considered as a "substantive defect," which may be raised by an exception properly entered and requiring that the issue be submitted to another jury. The general position applicable has been stated in the recent case of State v. Merrick, 171 N.C. 788, 795, 88 S.E. 501, 505, as follows:
For the error indicated, the plaintiff is entitled to a new trial, and it is so ordered.
New trial.
Laws 1907, c. 463 (Pell's Revisal, § 1981b), raised the age within which a child cannot be employed in a factory by providing that between the age of 12 and...
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... ... Rogers, 93 N.C ... 523; State v. Merrick, 171 N.C. 788, 88 S.E. 501; ... Hauser v. Forsyth Furniture Co., 174 N.C. 463, 93 ... S.E. 961; Nichols v. Champion Fibre Co., 190 ... ...
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... ... considered as a "substantial defect." Hauser v ... Furniture Co., 174 N.C. 463, 93 S.E. 961, 962. It ... undoubtedly weighed heavily against ... ...
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... ... Hauser v. Furniture Co., 174 N.C. 463, ... 93 S.E. 961. There, a minor between the ages of 12 and 13, ... ...
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Cook v. Town of Mebane
...'good moral character and sufficient intelligence.' They could easily understand the law as applied to the facts." See Hauser v. Furniture Co., 174 N.C. 463, 93 S.E. 961. The principle laid down in Nichols v. Champion Co., 190 N.C. 1, 128 S.E. 471, and like cases, are not applicable to the ......