Pettitt v. Atlantic Coast Line R. Co.

• Decision Date: 12 September 1923
• Docket Number: 60.
• Citation: 118 S.E. 840,186 N.C. 9
• Parties: PETTITT v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

118 S.E. 840

186 N.C. 9

PETTITT v. ATLANTIC COAST LINE R. CO.

No. 60.

Supreme Court of North Carolina

September 12, 1923

Appeal from Superior Court, Edgecombe County; Kerr, Judge.

Action by E. W. Pettitt, administrator, against the Atlantic Coast Line Railroad Company. Judgment of nonsuit, and plaintiff excepts and appeals. Reversed and remanded.

See also, 156 N.C. 119, 72 S.E. 195.

Whether a messenger under 12 years of age, employed to convey messages across railroad tracks, appreciated the dangers and knew how to avoid them, held a question for the jury.

This was an action by the administrator d. b. n. of a boy 11 years old, for wrongful death, alleged to be caused by exposure to dangerous employment, and without instruction as to the danger, by the defendant.

The evidence is that Joe Pettitt, the intestate, a boy, 11 years of age, was knocked by a car from the step of one of several moving cars attached to a shifting engine being operated by the defendant on its terminal and transfer yards in South Rocky Mount, and caught underneath the wheels of a train of cars and killed; his leg being cut off at the thigh, whereby he bled to death. The evidence is that he was under 12 years of age, not above the average in physical or mental development, and was employed by the defendant to carry messages from the dispatchers' telegraph office across said terminal and transfer yards.

These yards were 1 to 1 1/2 miles long, with 18 to 20 railroad tracks across which the intestate was constantly called upon to pass in delivering messages. It was a place of almost ceaseless activity, and along the tracks of which engines and trains were passing backwards and forwards every few minutes during the day, Sundays as well as week days.

The intestate was on duty from 7 a. m. until 7 p. m. 7 days in the week and 12 hours in the day. On Sunday, the day of his death, he reported at the usual hour (7 a. m.) for duty at the dispatchers' telegraph office, where he was required to be when not on the yard delivering messages, and later made delivery of one of the messages intrusted to him. He thereafter mounted the step of a moving car, and while standing thereon was knocked off by another car and was killed as above stated. It was an established custom for all messenger boys in this service of the defendant at South Rocky Mount, including the intestate, to ride moving trains engines, and cars, in order to expedite the delivery of messages and to avoid being run over by other moving cars and shifting engines.

At the close of the plaintiff¤ evidence, on motion of the defendant's counsel, judgment was entered of nonsuit, and the plaintiff excepted and appealed.

L. V Bassett, of Rocky Mount, and Don Gilliam, of Tarboro, for appellant.

M. V. Barnhill and F. S. Spruill, both of Rocky Mount, and Bridgers & Bourne, of Tarboro, for appellee.

CLARK C.J.

This appeal is from a nonsuit. Regardless of all statutory regulations, the mere fact of employment of the intestate, a boy less than 12 years of age, and wearing knee breeches, the assignment of him to the hazardous task of crossing 18 to 20 railroad tracks at all hours for the purpose of conveying telegraph and other messages to the numerous officials was a hazardous work, and the assignment of him to such a task constituted negligence on the part of the defendant. In addition, it is not shown that he was instructed or cautioned by the officials in charge as to the dangers incident to the work to which he was assigned.

In Fitzgerald v. Furniture Co., 131 N.C. 639, 640, 42 S.E. 946, 947, the court approved the rule laid down in Cooley on Torts, 652, as follows:

"Masters may also be guilty in exposing persons to perils in his service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in the employment of infants."

In Ensley v. Lumber Co., 165 N.C. 691, 81 S.E. 1010, Walker, J., approving the above citation from Cooley on Torts verbatim, added:

"It is the duty of the master to exercise due care in furnishing his servant with a reasonably safe place to work, * * * and, in the case of youthful or inexperienced employees, this further duty rests upon him: Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or inexperience, is ignorant of or unable to appreciate such dangers, it is his duty to give him such instruction and warning of the dangerous character of the employment as may reasonably enable him to understand its perils."

He added that--

While "the mere fact of the servant's minority does not charge the master with the duty to warn and instruct him, if he in fact knows and appreciates the dangers of the employment; and generally it is for the jury to determine whether, under all the circumstances, it was incumbent upon the master to give the minor, at the time of his employment, or at some time previous to the injury, instructions regarding the dangers of the work, and how he could safely perform it. It is the duty of a master who employs a servant in a place of danger to give him such warning and instruction as is reasonably required by his youth, inexperience, or want of capacity, and as will enable him, with the exercise of reasonable care, to perform the duties of his employment with reasonable safety to himself. 26 Cyc. 1174-1178; Turner v. Lumber Co., 119 N.C. 387; Marcus v. Loan, 133 N.C. 54; Walters v. Sash & Blind Co., 154 N.C. 323; Fitzgerald v. Furniture Co., 131 N.C. 636; Rolin v. Tobacco Co., 141 N.C. 300; Leathers v. Tobacco Co., 144 N.C. 350. Those cases fairly illustrate the rule as it has been applied by this court, and the Fitzgerald Case would seem to be essentially the same in its salient facts as this one, and, if not entirely so, there is a sufficient likeness between them to make it a controlling authority. The authorities elsewhere are in harmony with our decisions."

Judge Walker then, after quoting and approving the above citation from Cooley on Torts, p. 62, adds the following quotation from Thompson on Negligence, 978:

"The law puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all: The master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance, and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult."

Judge Walker further proceeds in the same opinion to quote to the same effect from Bailey on Personal Injuries, 1291, and from R. R. v. Fort, 84 U.S. (17 Wall.) 553, 21 L.Ed. 739 (where a parent was suing for injuries to his son who was 16 years old) as follows:

"This boy occupied a very different position (from an adult). How could he be expected to know the perils of the undertaking? He was a mere youth without experience, not familiar with machinery. Not being able to judge for himself, he had a right to rely on the judgment of [the master], and doubtless entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so."

In this case (Ensley v. Lumber Co.), the distinguished judge elaborated this proposition by numerous other quotations from other authorities to the same effect.

In Holt v. Manufacturing Co., 177 N.C. 175, 98 S.E. 369, Judge Walker quotes from the above case of Ensley v. Lumber Co., and the above-cited cases, and reaffirms the quotation from Fitzgerald v. Furniture Co., 131 N.C. 636, 42 S.E. 946, and Cooley on Torts, 652, and Thompson on Negligence, 978, and other authorities which held that the master is also guilty of actionable negligence if he expose persons to perils in his service, which, though open to observation, they do not fully understand and appreciate, and emphasizes that the duty is further imposed upon him in such cases to fully explain "the hazards and dangers connected with the business." There is no evidence in this case of any instruction of that kind by the defendant.

Indeed, this court has held that the intestate, being under 12 years of age, could not be guilty of contributory negligence as the defendant contends. In Rolin v. Tobacco Co., 141 N.C. 314, 315, 53 S.E. 891, 896 (7 L. R. A. [ N. S.] 335, 8 Ann. Cas. 638) Connor, J., said:

"Within certain ages, courts hold children incapable of contributory negligence. We do not find any case, nor do we think it sound doctrine, to say that a child of 12 years comes within that class [capable of contributory negligence]. Adopting the standard of the law in regard to criminal liability, we think that a child under 12 years of age is presumed to be incapable of so understanding and appreciating danger from the negligent act, or conditions produced by others, or to make him guilty of contributory negligence."

But indeed in this case there was no evidence whatever tending to show contributory negligence if it had been admissible. There were the simple facts that a boy under 12 years of age, in knee breeches, had been assigned to this dangerous work, and there was no evidence whatever that he was warned of its dangers or that he was capable of understanding the warning if it had been given to him. This case was here (156 N.C....