Rolin v. R. J. Reynolds Tobacco Co.

• Decision Date: 08 May 1906
• Citation: 53 S.E. 891,141 N.C. 300
• Parties: ROLIN v. R. J. REYNOLDS TOBACCO CO.
• Court: North Carolina Supreme Court

53 S.E. 891

141 N.C. 300

ROLIN v. R. J. REYNOLDS TOBACCO CO.

Supreme Court of North Carolina

May 8, 1906

Appeal from Superior Court, Forsyth County; Jones, Judge.

Action by Willie Rolin, by his next friend, against the R. J Reynolds Tobacco Company. From a judgment for defendant plaintiff appeals. Reversed.

A child under 12 years of age is presumed to be incapable of so understanding and appreciating dangers from negligence or conditions produced by others as to make him guilty of contributory negligence.

Action for damages for personal injuries sustained by plaintiff while in defendant's employment. Plaintiff testified "I commenced work for the defendant about a year ago May, 1904. I went in there one Monday morning. Mr. Nichols, boss man in the room, spoke to me and asked me if I wanted to weigh fillers. I told him, 'Yes.' He took me over and put me to weighing. Then he put me to cutting lumps on a table. They were making three-inch work. I worked at that place three days on one fortnight, and on the second fortnight six days. After cutting lumps I then was a sweeper on the floor. I cleaned up about machines and around the floor. That evening at 4 o'clock we got out of the factory. The weigh boy went down the house to wash his hands. The man that run that machine went down the house to clean up another machine. I was cleaning up that one I worked at. The weigh boy ran up and threw a piece of cut tobacco in the machine. I reached my hand in there to take it out. He pulled the lever and run, and the machine caught my hand and tore it off. I don't know the fellow who took me out of the machine. Mr. Nichols took me up in the house above and he said, 'Did you not tell me you were 12 years old?' I said 'No.' I was eleven years old in June, 1903. When cutting off lumps I was 12 inches away from the machine. No one explained to me the dangerous character of the machine, nor told me anything about it. I was born June 4, 1892. I would not have been hurt if the boy had not pulled the lever. The machine was set, and you had to pull the lever that made it work and set it. At time I was hurt I worked by the side of John Dillon all that day. Table and truck between me and the machine. The lever is in front of the machine. I did not get a lump and try to press it in the machine. He (Dillon) had pressed a lump that day for me. It was not after quitting time when I got hurt. If it was, all hands had not gotten out of the factory. No one told me to clean up the machine. I saw others cleaning up the machine, and I did so. No one ever asked me to clean up the machine, or do anything about it. It was part of my duty to clean up around the machine. Will Hairston is the name of the boy that pulled the lever of machine on me. He is working down there in the factory now. There was a belt attached to the machine running at the time. No one told me to clean up around the machines. Other boys were at work cleaning up." There was other evidence in regard to plaintiff's age, extent of injury, etc. At the conclusion of the evidence defendant demurred and moved for judgment as of nonsuit. Motion allowed. Plaintiff excepted. Judgment. Appeal.

L. M. Swink, for appellant.

Manly & Hendren, for appellee.

CONNOR J. (after stating the case).

The plaintiff bases his right to recover on the facts admitted by the demurrer upon two propositions: That his employment by the defendant, he being under 12 years of age, was in violation of the provisions of section 1, c. 473, p. 819, Acts 1903, prohibiting employment of children under 12 years of age, was per se negligence, or at least evidence of negligence, and that such negligence was the proximate cause of the injury sustained by him. The appeal, for the first time, presents to us for construction and application the act passed by the Legislature for the protection of young children by expressly prohibiting their employment in mills and factories. The first section is plain and calls for no construction by the court. It provides: "That no child under twelve years of age shall be employed in any factory or manufacturing establishment in this state." The provision in regard to oyster-canning factories is not material to any question presented by this appeal. The second section prescribes the hours during which persons under 18 years of age shall work. The third section provides that parents of children seeking employment shall give certificates in regard to their age, and makes any person knowingly and willfully violating the provisions of the act indictable, etc. The act is the result of the well-considered, and we think wise, conclusion of the General Assembly, reflecting and crystallizing into law the will of the people of the state. It is therefore not only our duty, but in entire harmony with our judgment, to give to the statute such a construction and application as will effectuate the intention of the General Assembly, remedy and prevent the continuation of an evil which threatens the welfare of the young children, and, thereby, the best and highest interest of the state. Referring to, and applying the provisions of, an act in almost the same language as ours, the Court of Appeals in New York, in Marino v. Lehmaier, 66 N.E. 572, 61 L. R. A. 811, says: "It has been said of the last century that it was the age of invention. Machines had been devised and constructed with which very many articles used by mankind were manufactured. Numerous factories had been established throughout the country filled with machines, many of which were easily operated, and the practice of employing boys and girls in their operation had become extensive, with the result that injuries to them were of frequent occurrence. We think it is very evident that these reasons induced the Legislature to establish definitely an age limit under which children shall not be employed in factories." The Supreme Court of Tennessee, in Queen v. Dayton, 95 Tenn. 458, 32 S.W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935, held that the employment of a minor within the age prohibited by the statute was negligence; that the breach of the statute was actionable negligence. In Perry v. Tozer, 90 Minn. 431, 97 N.W. 137, 101 Am. St. Rep. 416, it is said: "Authorities of the highest respectability hold that the violation of a statute prohibiting the employment of a child in a hazardous occupation, when such employment is prohibited by law, establishes a right to recover for negligence; hence, in such cases, liability is to be presumed from the employment in disobedience of law. *** Unless we can say that the statute has no effect in a suit for damages when the law had been violated, we are required to hold that the employment which the Legislature positively forbids furnishes evidence tending to show, at least presumptively, that one of the causes of the injury in this case was the violation of the statute, in analogy to the well-known doctrine that ordinances regulating the hitching of horses, the speed of trains in cities, or other subjects of municipal control are held to be evidence to sustain the charge of negligence. *** It is well settled that a wrongdoer is at least responsible for the results likely to occur, or resulting as a natural consequence from his misconduct or such as might have been reasonably anticipated.

We have, in accordance with the uniform current of authority held that the violation of a town ordinance regulating the speed of trains and street cars is at least evidence of negligence. Norton v. Railroad, 122 N.C. 910, 29 S.E. 886; Edwards v. Railroad, 129 N.C. 78, 39 S.E. 730; Davis v. Traction Co. (at this term) 53 S.E. 617. The principle was applied to the violation of a statute requiring fire escapes to be maintained in houses rented to tenants. Willy v. Mulledy, 78 N.Y. 310, 34 Am. Rep. 536; Earle, J., saying: "Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire escape, and the duty was imposed for the sole benefit of the tenants of the house, so that they would have a mode of escape in case of a fire. For a breach of this duty causing damage, it cannot be doubted that the tenants have a remedy." In Marino v. Lehmaier, supra, Parker, C.J., in a concurring opinion, says: "Against such accidents the state attempted to guard this boy, among others. But the defendant disregarded the law and employed and gave directions to one of the subjects of the state in violation of the state's policy, and the outcome of it was an injury to the child, which could not have happened had the law been observed. In such a case it would seeem that the necessary and logical practice would be that the jury should be permitted to consider the violation of the statute, in connection with the other facts, as evidence tending to show negligence on the part of the defendant." The learned chief judge cited a number of cases to sustain his conclusion. Before the passage of the statute the present chief justice, in Ward v. O'Dell, 126 N.C. 946, 36 S.E. 194, speaking for two members of this court, said that, notwithstanding there was no statute prescribing the age within which children should not be employed in mills and factories, "There is an aspect in which the matter is for the courts, that is, whether it is negligence per se for a great factory to take children of such immature development of mind and body and expose them for 12 hours per day to the dangers incident to a great building filled with machinery constantly whirring at a great speed." The same line of thought is expressed and sustained by numerous authorities, in Fitzgerald v. Furniture Co., 131 N.C. 636, 42 S.E. 946. Certainly, with the positive prohibition imposed by the Legislature against the employment of a child under 12 years of age, there can be no...