Queen v. Dayton Coal & Iron Co.

• Decision Date: 17 October 1895
• Citation: 32 S.W. 460,95 Tenn. 458
• Parties: QUEEN v. DAYTON COAL & IRON CO., Limited.
• Court: Tennessee Supreme Court

32 S.W. 460

95 Tenn. 458

QUEEN v. DAYTON COAL & IRON CO., Limited.

Supreme Court of Tennessee.

October 17, 1895

Appeal from circuit court, Rhea county; J. G. Parks, Judge.

Action by John Queen, by next friend, against Dayton Coal & Iron Company, Limited, for personal injuries. Defendant had judgment, and plaintiff appeals. Reversed.

Givens & Locke, for appellant.

Burkett Miller & Mansfield, for appellee.

McALISTER J.

This suit was commenced in the circuit court of Rhea county by the plaintiff in error, a minor, suing by his next friend against the defendant company, to recover damages for personal injuries. The record discloses that the plaintiff in error, a boy about 10 years of age, was employed by the defendant company to work in its mines in the capacity of a trapper. His duties were to open and close the gates for the cars to pass through, and, in addition, to keep the track between the two gates clear of coal and slate. The plaintiff testified that at the time of his employment he "was told by the superintendent to mind the car driver, and do whatever he told me. That on the day of the injury Jim Carter was car driver, and was coming on his last trip, with empty cars, and he told me to prop open the gates, and go with him to the headway of the entry, and hold his mule while he got out the loaded cars. I did as he told me, and after he got the loaded car he told me to get on the car, which I did, and he then started on the return trip. When he got to the gate on his way to the main line, he told me to jump off. But this I refused to do, and asked him to stop the car; but after he told me several times to jump off, I did so, and fell under the wheels of the car, which crushed my right leg and knee." He further states he had been in the habit of riding on the cars a greater part of the time, but the driver, prior to this trip, always stopped for him to get off. The superintendent of the company denied that he had placed the boy under the orders of the car driver, and stated that he had repeatedly forbidden the plaintiff in error to ride on the cars. The theory of the company was that at the time of the accident the boy was attempting to get on the car, but his foot missed the bumpers, and was caught beneath the car. It was claimed by the company that the boy frequently boarded the car, and had been repeatedly warned of the danger, but that he persisted in violating the rules of the company. The cause was tried by the circuit judge and a jury, resulting in a verdict and judgment in favor of the defendant company. The plaintiff appealed, and has assigned errors.

The act of 1881 ^[1] entitled "An act to provide for the ventilation of coal mines and collieries and the protection of human life therein," provides in the tenth section, viz.: "And no boy under twelve years of age shall work or enter any mine, and proof must be given of his age, by certificate or otherwise, before he shall be employed, and no father or other person shall conceal or misrepresent the age of any boy knowingly." A violation of the act is thus declared a misdemeanor punishable by fine or imprisonment or both at the discretion of the court trying the same. The record discloses that at the time of his employment the plaintiff in error was a boy about 10 years of age. The superintendent states that at the time he hired him he did not know his age, and did not inquire; that he did not demand from him, or any one else, a certificate of his age, and did not receive one. He claims, however, that he hired the boy at the request of his mother, who called to see him frequently on the subject. As applicable to this state of facts, counsel for plaintiff in error requested the court to charge as follows: "I instruct you that the laws of the state of Tennessee prohibit the employment of any child under twelve years of age in any mine in this state, and any such employment by the defendant company would be gross negligence." The circuit judge refused the instruction and in lieu thereof submitted the following remarks to the jury, viz.: "I instruct you that the statute in question has no application to the facts of this case. It makes it a misdemeanor to employ a child under twelve years of age, and, if defendant did so, it would be guilty of a misdemeanor, and liable to be punished therefor. But the statute does not provide that one failing to comply with its provisions shall answer civilly for all damages that may result to any such child in its employ; hence it does not apply to the facts of this case. Neither does it appear that the statute prohibits anything in or about which plaintiff was injured. If it did, and defendant disobeyed it, and as a consequence thereof plaintiff was injured, then such failure to obey might be actionable negligence; but such are not the facts of this case." The refusal of the court to give the instruction asked and the remarks made in refusing it constitute the basis of the principal assignment of error. The question presented is one of first impression in this state, but it has been frequently adjudged in other states, and is well settled upon principle. It is laid down in Comyn's Digest "that in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for...