
    Marbury Lumber Co. v. Westbrook.
    „ _ Damages1for Personal Injury to Minor.
    
    1. Minor; person employing at dangerous worTc responsible for injury to. — -If a person puts a minor under fourteen years of age to work at a dangerous place without the consent of the parent having him in charge, and he is injured, the person is responsible in damages to the parent without reference to • negligence on the one part or contributory negligence on the other — these issues not being involved.
    2. Contributory negligence when made material issue. — If the plaintiff in an action for damages for negligent injury by the defendant improperly takes issue on a plea of contributory negligence, he makes it a material issue, and he cannot complain of the action of the court in. referring the question to the jury, the evidence being conflicting.
    ■3: The giving of an abstract’ charge furnishes no ground for a reversal.
    
      4. Minor; natural instinots of, when considered and their effect. In determining whether or not a work or place of work is dangerous to'a boy under fourteen years of age, the natural instincts and disposition of a boy of that age are to be considered; and if the work affords to such a boy the temp'tatipn and opportunity by indulging these instincts to put himself in danger, the place as to him is dangerous.
    5. Charge; must not .assume controverted facts. — A charge asked whicn assumes or declares a fact to be true which is controverted is properly refused.
    6. Consent of parent not to he extended. — Consent by a parent that a son under fourteen years may be employed in a certain work does not imply consent to his employment in another work.
    7; Knowledge of parent; implication from restricted. — The knowledge on the part of a parent that a son is employed about a mill and failure to object thereto, does not carry the implication that the.parent-consents to the. son being put to a dangerous work, when the parent does, not know the particular work on which the son is engaged, and has the right from previous employment of the son to assume that he is employed on less dangerous work.
    8. Contributory negligence of minor when an available defence. — A parent cannot recover for injury to a minor‘son incurred while he was employed in a dangerous work, if the employment was with her knowledge and consent, and if the son was guilty of contributory negligence which proximately contributed to the injury.
    Appeal .from the Oircuit Court of Autauga.
    Tried before the Hon. N. D. Denson.
    Mrs. M. 0. Westbrook sued the Marbury Luniber Company, a corporation, to recover damages for injury to her son. The father of the son was dead and the son, a boy under fourteen years of age, was put by the company to work at a place about its mill which was alleged by the plaintiff to be dangerous, and while so engaged he was severely injured. The defendant company pleaded, among other pleas, contributory negligence on the part of the boy in this that, the employment was with the consent of his mother, and the boy- was negligent in and about the performance of his duties, which negligence contributed proximately to the injury' complained of. To this plea the plaintiff demurred, and the demurrer being overruled she took issue on it. The evidence on the part of the plaintiff tended to show that the- son was a member of her family and under her control; that she knew that her son was employed at defendant’s mill but had no knowledge of the character of the work on which he was engaged; that she had previously to this employment consented that her son might do a certain kind of work at the mill which was different from the work on which he was engaged when injured. This evidence was controverted by the company. The questions at issue were the control over the son by the mother, her knowledge of his employment by the company and the nature of his work, the character of the work being performed by the son when he was injured, as to whether more or less dangerous than the work formerly done by him with his mother’s consent, and the contributory negligence of the boy. A portion of the general charge which was excepted to by the defendant was that “the plaintiff could not recover if shie knew that her son Avas working at the mill provided she knew the character of the engagement in which he was employed.” The defendant also excepted to the giving of certain charges asked by the plaintiff, viz:
    1. “A. consent to employment to roll stacker sticks if there Avas such consent is not necessarily a, consent to Avorlc at the carriage of the sayv mill.”
    2. “A place or Avork might be dangerous to a boy under fourteen years when it might not be dangerous to a person of mature years.”
    3. “In considering Avhether or not a place of work is dangerous to a boy of fourteen years the jury may consider the natural instincts and disposition of a boy. of that age.”
    The defendant asked the general charge on the whole-complaint and on each count separately; and also asked a charge as follows:
    4. “If the jury believed from the evidence t]iat the plaintiff consented to the employment of her son then she was guilty of any negligence of which her son was guilty; and if such consent Avas given she cannot recover.” ■
    5. “If the jury believed from the evidence that plaintiff consented or. had knowledge that her son was employed at said mill then she cannot recover.”
    
      6. “If - the jury believed from the evidence that plaintiff’s son had been employed about said mill at various times before with the knowledge, consent and at the request of. plaintiff, and that, the employment in which he ■ was engaged at the time he was hurt was the same kind of nature and not more dangerous than that formerly .engaged in, the plaintiff not having previously notified the defendant of her objection, it may be inferred from such fact that she consented to such employment.”
    The charge number seven was practically the same as , the foregoing.
    J. M. Falkneb and Ray Rusiiton, for appellant,
    contended that the charge in the complaint that the minor son was caused to work wrongfully without the consent of the plaintiff was equivalent to.saying that the employment was against the will of the plaintiff. If the complaint had simply alleged that the causing to work was without the consent of the plaintiff it would have been demurrable as not every employment without consent is actionable. — Lovell v. DeBardeleben Goal & Iron Go., •90 Ala. 18; Railroad v. Trimble, 8 Ind. App., 341; Gulf, 'etc., R. R. Go. v. Vieno, 7 Tex.' Civ. App., 347. (2). The boy was not told to ride on the carriage and the defend- , ant had the right to presume that he would not do so; and there was no danger to him when setting up the head blocks. — O’Kieff v. Thorne, 16 Atlantic, 737; Sullivan v. .Toledo R. R. Go., 58 Ind., 26; Schlaff v. L. & N. Go., 100 Ala. 389. (3). If the father consent either expressly or impliedly to the employment of his son and the son is guilty of contributory negligence the father- would be held responsible for such negligence. — Williams v. N. & S. R. R. Go., 91 Ala. 640. (4). New trial should have been granted, 109 Ala. 589. .
    No brief for the appellee came to the hands of the reporter.
   MoCLELLAN, C. J.-

— -This action is prosecuted by .Mrs. Westbrook against the Lumber Company. The complaint contains two counts. The first count- as amended is as follows: “Plaintiff claims .of ;the defend.ant ten thousand dollars as damages- for that heretofore, to-wit, on the 16th day of September, 1896, defendant was running and operating a saw mill at or near Bozeman, Alabama, and in or about the operation or running thereof the defendant wrongfully, without the ' consent of plaintiff, caused plaintiff’s minor son, ■ Guy Westbrook,, whose father was then dead- and who was a member of plaintiff’s family, to work in or about the running or operation of said saw mill at a place or at work which was highly dangerous to a person of his youth and inexperience,. and as a proximate consequence of said wrong, plaintiff’s said son had his foot partly or entirely torn off or so badly mangled or crushed that said foot was amputated, and her said son was made a cripple and disfigured for life and was rendered less able to work qnd earn money,, and plaintiff was put to great expense and trouble to heal and cure his said wounds and injuries, and plaintiff lost the services of her said son for ■a long time, and his services were rendered permanently less valuable to her, and she lost his society and suffered •.great mental- pain and anxiety by reason of his said injury, and that her said son was injured while engaged ,in or about such dangerous work or place, all to her damage, etc., etc.” The second count as amended is sub.stantially the same as the first. The gravamen of the action obviously is the. alleged wrong of the defendant in putting the plaintiff’s minor son to work at a dangerous place or upon dangerous work without her consent. This is the charge; and it manifestly involves no issue of negligence. If the defendant so put the boy to work .without the mother’s consent, and the boy was injured in consequence, the Lumber Company is guilty as charged and answerable in damages to the plaintiff, regardless of negligence vel non on its part and also regardless of contributory negligence vel non on the part .of the boy unless this latter issue was improperly imported into the case by the tender on the part of the defendant and its acceptance on the part of the plaintiff of a false issue as to whether the boy contributed to the injury by his own want of care. There was such tender on the part of the defendant by the interposition of pleas of contributory negligence. The plaintiff sought' to avoid its acceptance by demurring to these pleas. But the demurrer was overruled, and she was forced to join issue on the' pleas. This ruling of the trial court was erroneous. The issue was false and' foreign to the case. It would have been appropriate had the employment of the boy' been with the consent of the mother. In that case she could only recover for defendant’s negligence, and to a charge of negligence a plea of contributory negligence would have been a defense^ But this erroneous ruling was favorable to and made at the instance of the appellant, and hence cannot be reviewed on this appeal. Plaintiff’s remedy against the ruling was to decline to plead further, suffer a judgment and appeal to this court. Electing to take issue on the pleas and to proceed with the trial, the case is to be considered here as if she had voluntarily joined in an immaterial issue, thereby making it a material one. And assuming that the pleas were established, the anomaly is presented’ of a case being made out for the plaintiff without proof of negligence, and being met and overturned by proof of contributory negligence imputable to the plaintiff. But neither the complaint nor the pleas can be said as matter of law to have been proved. The evidence tended to establish both, but not without conflict or beyond adverse inference. The minority of the boy and the facts that he was the plaintiff’s son and that his father was dead were undisputed, and so also that he was just under fourteen , years of age at the time of' the injury. We will’ not say that the averment of his membership in plaintiff’s family was proved to the exclusion of inferences to the contrary ; but there was evidence from which the jury were fully justified in so finding,, and it is clear that he, whether strictly speaking a member of plaintiff’s family or not, had not been emancipated. And there was also' evidence tending to show that he had been put by defendant to work at a dangerous place or upon dangerous work, without plaintiff’s consent and was injured in (ion-sequence. On the other hand, the boy being ufider fourteen years of age, and the jury’s conclusion as to his capacity to take care of himself resting on inferences to be drawn from them from the prima facie presumption of incapacity in connection with the evidence 'as- to his mental and physical development tending to rebut that presumption, the inquiry as to contributory negligence was peculiarly for their consideration and solution. It being thus for- the jury to determine whether the averments of the complaint and of the pleas-were true, the court very properly-ref used to give the-affirmative instructions requested, by the defendant. ■

The truism of the second charge given for the plaintiff; that “a place or work might be dangerous to a boy under fourteen years when it might not be-dangerous to a-person of maturer years,” is not questioned; but it is said to be abstract in the case. If that were so it would furnish no ground for a reversal. But it is not abstract. It may well be that there was no danger at all involved in properly turning the wheel which pushed the logs into position to be cut by the saw, which duty this-boy was set' to perform, but it may further well be that that was dangerous work or a dangerous place to work for-.a boy under fourteen years of age, because of the likelihood or liability that such a boy would not perform this work properly by standing, as he should, on the ground or floor of the mill, but would indulge “the natural instincts and disposition” incident to his age and ride up and doAvn on the log carriage and turn the wheel from that position which was a dangerous place for him to he and which work was dangerous to be done in that way. The fact that there are instincts and dispositions incident to adolescence not counter-balanced by developed judgment and unrestrained by lessons of experience is one of the main grounds upon which is rested the- presumption of incapacity. The opportunity ' offered this boy of riding- up and down on the log carriage was- one to naturally appeal to him leading him-on to- danger '; and the putting him to work or in a place offering this opportunity was, in view of his youth and its natural inclinations, the putting him to work in a dangerous place or at dangerous work, though the place and the work may have been safe enough for'a man without such inclinations, or for one who having them also has experience and judgment to forego their indulgence or to •indulge them.yd th .safety, conserving prudence and card. These considerations go to show that this second charge ..was not abstract and also that the third charge given •for-the,plaintiff is a correct exposition of the law. They •further serve to demonstrate the infirmity of defendant’s contention that the turning of this wheel.was a less dan•gerous occupation than the carrying of stacker sticks, the. work upon which plaintiff had. consented for her son to be employed. It may be-that the proper performance of the former service was not more, or even less dangerous than the latter; but we have no right to •assume, careful, prudent and proper ..performance fif .either by this boy. The danger in either is not to be ■measured with reference to a person of mature disposition, experience and judgment,,but with reference to this ..boy of presumed.incapacity and childish instincts, disposition and inclinations. The .carrying of the sticks .afforded; him no, opportunity or temptation to indulge -his inclinations- to his own undoing, but. the work of turning the wheel offered .him easy opportunity and alluring temptation to give rein tó his innate inclinations unconstrained' by any sense of- the danger incident, to yielding to them. Hence so far from it being possible- to ■affirm that the carrying of stacker sticks was. more dangerous than work at the log. carriage there is every reason for affirming just the reverse in relation to this •boy. Charges 5, 6 and 7 refused to. defendant were each .bad either in. assuming or declaring that the work upon which the boy was engaged when injured was of .the .same kind,-or less dangerous or not more dangerous as or -than that upon which he had previously been engaged -with .plaintiff’s consent, ■

Charge 4 refused to defendant is inaccurate in declaring that plaintiff was guilty .of -any negligence of' which her' son was guilty assuming she had consented to his employment. His negligence would in a proper case be imputable to her, or rather' be .a defense against a claim for damages on her part, but it-is not .correct to say that she in such case would be guilty of. his negligence. This charge is faulty in no.t postulating that the son’s negligence proximately contributed to his injury; and it involves a. direct.tendency to. mislead the jury to find that .she consented to the boy’s employment at the log carriage. solely upon the fact that she consented to his employment to carry stacker sticks, or rather to the conclusion that her consent, to the latter employmefit was 'the equivalent of consent to the former, which it clearly was not as the court properly declared in the first instruction given for the plaintiff.

There is no merit in the exception reserved to a certain part of the court’s oral charge. The plaintiff could not be held to have consented to the employment of her .son upon dangerous work or in a dangerous place because of her knowledge that he was employed at the mill and failure within a reasonable time to object, when she had no knowledge that he was upon this particular work, and, to the contrary, had a right to assume that he was employed upon the less dangerous work upon which- he had been previously engaged with her consent. • ' •

• We do not find the verdict to be so unsupported by the evidence in any particular as to justify us in reversing the order of the lower court overruling and denying the motion for a new trial.

Affirmed. '  