
    Molaske, Respondent, vs. The Ohio Coal Company, Appellant.
    
      September 30
    
    
      October 17, 1893.
    
    
      Master and, servant: Injury through negligence of boy fellow-servant: Presumption as to Ms competency: Usage.
    
    1. Hie presumption is that a boy under the age of fourteen years is not competent to perform duties involving the personal safety of others and requiring the exercise of a good degree of judgment and discretion and constant care and watchfulness; and in an action for injuries resulting from the negligence óf a boy so employed, the burden is upon his employer to show that he was in fact competent.
    
      2. No usage to employ boys of tender years to perform such duties can be upheld.
    APPEAL from the Circuit Court for Ashland County.
    This action is to recover damages for personal injuries received by plaintiff when in the employ of defendant company, alleged to have been tbe result of the negligence of the company, in that (1) it failed to provide suitable machinery and appliances for doing the work in which plaintiff was employed; and (2) it employed an incompetent person to work with plaintiff, through whose negligence the injury was inflicted. There is no testimony tending to show any defect in such machinery or appliances, and hence that alleged cause of action disappears from'the case.
    The defendant coal company, employed plaintiff to work at Ashland, unloading coal from the hold of a vessel, and he commenced work on the morning of July 6, 1892. His duty was to shovel coal into buckets, which, when filled, were hoisted by steam power to the adjacent dock. These were raised, and empty buckets lowered into the hold by the same power, by means of a wire rope attached to a derrick, passing through a movable pulley, having a hook at the lower end of the rope. It was also plaintiff’s duty to detach the hook from the bales of empty buckets, and hook the same upon the bales of buckets which had been filled and were ready to be hoisted. The engine which did the work was on the dock, and the engineer could not see the men at work in the hold of the vessel; hence the necessary course of the business was to station a person on' the hatchway of the vessel, whose duty it was to signal the engineer when the buckets were ready to be hoisted. Five other men were at work with plaintiff, and it is estimated the buckets were raised from the vessel at the rate of one per minute. A boy from twelve to fifteen years of age was employed by the coal company to give such signals, and had been so employed about a week before plaintiff commenced work there. At about five o’clock- in the afternoon of July 6th, plaintiff seized the rope by which an empty bucket had been lowered with his left hand, just below the movable pulley, and the hook with his right hand, loosened tbe book from tbe empty bucket, and just as be booked it to a full bucket, tbe boy, without being directed by tbe plaintiff to do so, gave tbe signal to tbe engineer to boist, and he did so while plaintiff still bad hold of the rope. His left hand was drawn into tbe pulley, and two of bis fingers were torn off. This is tbe injury complained of.
    The court submitted it to the jury, as questions of fact, whether tbe boy employed by tbe company to signal tbe engineer was of tbe age of twelve or thirteen years, and whether be lacked tbe necessary prudence and discretion, to tbe knowledge of the company, to discharge that duty so as to render the position of tbe persons at work in tbe bold of tbe vessel reasonably safe; and instructed them that if the boy was incompetent properly to perform that duty it was negligence on tbe part of the company to employ him. Tbe court further charged that if tbe plaintiff did not know tbe unfitness of tbe boy, and was not guilty of any negligence which contributed directly to tbe injury complained of, and if plaintiff was injured because tbe boy was thus incompetent, be was entitled to recover.
    Tbe jury found for tbe plaintiff, and assessed bis damages at $400. A motion for a new trial was denied, and judgment for plaintiff entered pursuant to tbe verdict. The defendant company appeals from tbe judgment.
    For the appellant tbe cause was submitted on the brief of O’Keefe & Foster and McCafferty <& Noyes.
    
    To tbe point that the presumption was that tbe boy was competent to perform tbe duties required of him, they cited Ool-lins v. 8. B. II. B. Oo. 26 Am. & Eng. E. Cas. 371; Book-ford^ B. I. <& St. L. B. Oo. v. Delaney, 82 Ill. 198; Ohieago (& A. B. Go. v. Booker, 76 id. 32; Nagle v. A. V. B. Oo. 32 Am. Eep. 413; Neal v. Oillett, 23 Conn. 437-442; Erwin v. St. L., 1. M. (& S. B. Oo. 35 Am. & Eng. E. Gas. 395, note.
    
      John F. Dufur, for tbe respondent, to tbe point that tbe competency of the boy was a question for the jury,
    cited Buswell, Pers. Inj. 339, sec. 203; Neilon v. M. dt M. P. Go. 75 Wis. 579; 2 Thomp. Trials, 1662-3; 7 Am. & Eng. Ency. of Law, 856; Shearm. & Redf. Neg. sec. 191.
   LyoN, O. J.

Although upon some of the questions submitted to the jury there is a conflict of testimony, and in some particulars the testimony may be somewhat confused and obscure, yet, after careful consideration, we are of the opinion that it is sufficient to support findings that the exigencies of the business, and the reasonable safety of plaintiff and the other persons employed in the hold of the vessel, required that a person of prudence, caution, and constant watchfulness and attention to his duty should be employed to signal the engineer when to hoist the full buckets; that no such signals should have been given until such person knew that the men in the hold were clear of the buckets and the same were ready to be hoisted; that the boy employed by the company to signal the engineer was about twelve or thirteen years of age; that he gave the signal which resulted in injuring plaintiff prematurely and negligently; that plaintiff did not know who’ was employed to give the signals, or that the person so employed was incompetent to perform that duty; and that the plaintiff, when injured, was in the exercise of reasonable care. By returning a general verdict for plaintiff the jury necessarily found, under the charge of the court, all the above propositions of fact which the testimony thus tended to prove. These propositions are, therefore, verities in the case. In like manner, under the charge of the court, the jury necessarily found that, to the knowledge of the coal company, the boy was incompetent to perform the duty of giving such signals with reasonable safety to the plaintiff and his co-employees in the hold of the vessel. If such finding is also supported by the testimony, there can be no •doubt that the plaintiff is entitled to recover in the action. Whether it is so supported is, therefore, the only question to be determined on this appeal.

The only testimony bearing upon the question of the competency of the boy is, on’ the part of plaintiff, that the boy was only about twelve years old, and that he prematurely and negligently gave the signal to hoist which resulted in injuring the plaintiff; and on the part of defendant, that he performed that duty satisfactorily for about a week before the injury. True, there are other statements in the testimony on behalf of defendant, as that such boys are usually employed to give the signals, and that the custom is to give them in the first instance to the engineers, when the person charged with the duty of giving them sees for himself that the full buckets have been attached to the hoisting apparatus, and then -for him to warn the workmen in the hold of the vessel to get out of the way. It is claimed that such testimony also tends to establish the competency of the boy; but we think otherwise. No usage to ■employ boys of tender years to perform duties involving the personal safety of others, which require judgment, dis-1 cretion, and care greater than is usually possessed by boys •of such age, can be upheld for a moment. As to the other branch of the testimony just mentioned, if it is a valid custom for the person employed to signal the engineer to give the same as his inspection and judgment dictate, without signals from the hold of the vessel, a still greater responsibility rests upon the company in the choice of an employee to give the signals, and greater care is required in making .such choice than would be required were the signals given after information received from the men in the vessel that the buckets were ready to be hoisted. So this testimony is rather against than in favor of the company.

As above stated, the facts that the boy was but twelve ■or thirteen years old, and that the plaintiff received the injuries complained of because of his negligence in prematurely giving the engineer the signal to hoist the bucket, are verities, made so by the verdict. The controlling question is, Are those facts sufficient to send to the jury the question whether the company is liable to respond in damages for plaintiff’s injuries, on the ground that it knowingly employed an incompetent person to give the signal to the engineer, there being no proof that the boy failed to perform his duties properly in any other instance ? It seems clear to our minds that the above question should be answered in the affirmative. The duty of giving the hoisting signal to the engineer required the exercise of a good degree of judgment and discretion, and constant care and watchfulness. It is common knowledge that, while a boy of twelve or thirteen years of age may possess and be capable of exercising these qualities, yet a large percentage of such boys do not possess them or are not capable of exercising them continuously. It would prove a great strain upon an adult to require his undivided attention', every minute of working time during each day to giving-these signals, especially if properly conscious that a single-mistake might result in maiming or killing some one in the vessel. It is certain that very many boys of twelve and thirteen years of age — probably a large majority of them — ■would be incapable of enduring that strain, and would prove ■ entirety unable to maintain the ceaseless concentration of thought and purpose required, or to exercise in each emergency of the business the judgment and discretion essential to the safety of those men. That the boy employed by the coal company to give those signals possessed those qualifications is not conclusively proved by the fact that he performed the duty properly for a week, although it is - to his credit that he did so. "We are not informed.of the-amount of work done during that week, or how. pressing. or constant his duties were.

The presumption of the common law is that a child under fourteen years of age is incapable of committing a crime; but, as applied to a child over seven years of age, this presumption may be rebutted by evidence. 1 Bish. Grim. Law (6th ed.), § 368. The rule recognizes the immaturity of -children of such tender years, their lack of judgment and 'will and concentration of purpose, the existence of which 'conditions all experience has proved, and fixes the age when the presumption of capacity arises at fourteen years. In •analogy to that rule, and having due regard to what we ■deem most persuasive considerations of public policy, we hold that on the proofs in this case the presumption of law is that the boy employed by the coal company to give the ■•signals was. incompetent for that duty, and that the company employed him at its peril of being able to prove, if sued for injuries resulting from his negligence, that he was in fact -competent. We hold further that the defendant has not proved conclusively the competency of the boy, ■and henee that the verdict finding him incompetent cannot be disturbed.

By the Court.— The judgment of the circuit court is affirmed.  