
    E. W. PETTITT, Admr., v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 12 September, 1923.)
    1. Railroads — Carriers of Freight — Negligence—Evidence—Employer and Employee — Children—Dangerous Employment — Contributory Negligence — Nonsuit.
    The employment by the defendánt of a lad under twelve years of age as a messenger to carry train orders from the dispatcher’s office to numerous trains shifting and moving upon the extensive freight yard, without evidence that he had been instructed or made aware of his dangerous employment, is evidence of defendant’s actionable negligence in causing his death while he was engaged in the course of his employment in delivering one of these messages; and evidence that he was then riding on the step at the end of a box car on a moving train, according to an established custom known to the officers or superior employees of the railroad company, and killed by being, struck by a passing train on a near-by parallel track, is not sufficient to bar his recovery on the issue of his contributory negligence, and defendant’s motion as of nonsuit should be denied. Sem-ble, a boy of that 'age, under the circumstances, could not be guilty of contributory negligence.
    2. Evidence — Nonsuit.
    Upon a motion as of nonsuit upon the evidence, the evidence must be considered in the light most favorable to the plaintiff.
    3. Supreme Court — Decisions — Stare Decisis — New Trials — New Evidence — Evidence.
    A decision of the Supreme Court on a former appeal in an action between the same parties upon the same cause will not be held as controlling when on a later trial in' the Superior Court evidence has been introduced that would render the former opinion inapplicable upon the point therein passed upon.
    Stacy, J., concurring.
    Appeal from Connor, J., at April Term, 1923, of Edgecombe.
    This was an action by tbe administrator cl. 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 Eocky Mount and caught underneath the wheels of a train of ears 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 dispatcher’s telegraph office across said terminal and transfer yards.
    
      These yards were one to one and one-half miles long, with eighteen to twenty 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., seven days in the week and twelve hours in the day. On Sunday, the day of his death, he reported at the usual hour (7 a. m.) for duty at the dispatcher’s telegraph office, where he was required to be when not on the yard delivering messages, and later made delivery of one of the messages entrusted 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 ears, 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’s evidence, on motion of the defendant’s counsel, judgment was entered of nonsuit, and the plaintiff excepted and appealed.
    
      L. V. Basset and Don Gilliam, for plaintiff.
    
    
      M. V. Barnhill, F. S. Spruill, and Bridgers & Bourne for defendant.
    
   ClabK, 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 eighteen to twenty 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., 639-40, 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, Walker, J., approving the above citation from Cooley on Torts verbatim, added: “It is the duty of tbe master to exercise due care in giving bis servant a reasonably safe place to work, and in tbe case of youthful or inexperienced employees, tbis further duty rests upon him; where tbe master knows, or ought to know, tbe dangers of tbe employment and knows, or ought to know, that tbe servant, by reason of bis immaturity of years or inexperience, is ignorant of or unable to appreciate such dangers, to give him such instructions or warning of tbe dangerous character of tbe employment as may reasonably enable him to understand its perils.” He added that “while tbe mere fact of tbe servant’s minority does not charge tbe master with tbe duty to warn and instruct him if be in fact knows and appreciates tbe dangers of tbe employment; and generally it is incumbent upon tbe jury to determine whether, under all tbe circumstances, it was incumbent upon tbe master to give tbe minor, at tbe time of bis employment, or at some time previous to tbe injury, instructions regarding tbe dangers of tbe work and bow be could safely perform it. It is tbe duty of a master who employs a servant in a place of danger to give him warning and instruction as is reasonably required by bis youth, inexperience, or want of capacity, and that will enable him with tbe exercise of reasonable care to perform tbe duties of bis employment with reasonable safety to himself. 26 Cyc., 1174-1178; Turner v. Lumber Co., 119 N. C., 387; Marcus v. Loane, 133 N. C., 54; Walters v. Sash and 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 tbe rule as it has been applied by tbis Court, and tbe Fitzgerald case would seem to be essentially tbe same in its salient facts as tbis one, and if not entirely so, there is a sufficient likeness between them to make it a controlling authority. Tbe authorities elsewhere are in harmony with our decision.” Judge Walicer then, after quoting and approving tbe above citation from Cooley on Torts, p. 62, adds tbe following quotation from Thompson on Negligence, 978: “Tbe law puts upon a master, when be takes an infant into bis service, the duty of explaining to him fully tbe hazards and dangers connected with tbe business and instructing him bow to avoid them. Nor is tbis all. Tbe master will not have discharged bis duty in tbis regard unless tbe instructions and precautions given are so graduated to tbe youth, ignorance and inexperience of tbe servant as to make him fully aware of tbe danger to him and to place him with reference to it in substantially tbe same state as if be were an adult.” Judge Walker further proceeds in tbe same opinion to quote to tbe same effect from Bailey on Personal Injuries, 1291, and from R. R. v. Fort, 84 U. S., 553 (where a parent was suing for injuries to bis son who was 16 years old), as follows: “Tbis boy occupied a very different position (from an adult). How could be be expected to know tbe perils of tbe 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 oil 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 Collet 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. Mfg. Co., 177 N. C., 175, Judge Walleer quotes from the above case of Ensley v. Lumber Go. and the above cited cases and reaffirms the quotation from Fitzgerald v. Furniture Co., 131 N. C., 636, and Cooley on Torts, 652, and Thompson on Negligence, 978, and other authorities, which hold 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, 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., 119, when a nonsuit was sustained by a divided Court, there being two dissenting opinions. It appears from reference to the majority opinion that two of the judges placed their affirmation of the nonsuit upon the ground (p. 129) that though the Court had held that “when the employment is dangerous, it is not necessary to prove a failure on the part of the employer to instruct That there was nothing in tbe evidence to sbow tbat tbe intestate was on duty or was performing a duty for tbe defendant. Tbe evidence is vague and unsatisfactory. No witnesses swear wbat day tbe intestate was killed, but we assume it was on Sunday, 1907. No witness says tbat tbe intestate was on duty tbe day be was killed or tbat be was performing a duty for tbe defendant at tbe time of bis death. These facts were not peculiarly in tbe knowledge of tbe defendant, as bis mother and step-father knew whether or not be was on duty tbat day, and both knew be was employed by tbe defendant and tbe mother received bis wages.’ ” Tbe third judge placed bis decision upon a different ground, tbat tbe Legislature bad not forbidden tbe employment of a child under 12 at that time in such employment. Tbe two dissenting judges held tbat on tbe evidence tbe boy _ was “on duty” when killed.

At tbe time of tbe nonsuit in tbe former case two of tbe witnesses, for some unknown reason, were absent, but since then they have returned to tbe State and tbe evidence on this trial is explicit, by these two eyewitnesses, tbat tbe intestate was on duty when be was killed. J. E. Jones testifies tbat “the deceased was in knee trousers at tbe time of bis death; tbat there were about twenty tracks on tbe yard; tbat be was a messenger boy also in tbe same service with tbe deceased; tbat Joe was killed on Sunday morning; tbat be himself was on duty tbe previous night and was relieved by Joe tbat Sunday morning, who went into service at 7 o’clock delivering messages; tbat both of them were required to work twelve hours a day and seven days a week; tbat they received $12.50 per month, and tbat their duties were to deliver messages at any point on tbe yard or at any place where messages were to go; tbat Joe, tbe deceased, was killed between 10 and 12 tbat morning; tbat tbe yard was used in making up trains going north, south, east and west; tbat it was a little oyer a mile long and tbat it was about a mile from tbe telegraph office to tbe most distant point to which they were required to deliver messages. Tbe established custom for messenger boys to deliver messages was for them to ride freight trains or ride anything tbat would run on tbe track tbat they could get a ride on; tbat be bad been working as messenger boy for two years when Joe was killed; tbat during tbat time no officer or employee of tbe defendant bad ever objected to tbe messenger boys riding cars or engines in tbe yards in delivering messages.”

L. C. Johnson also testified tbat be “was a messenger boy with the plaintiff at tbe time of bis-death, and tbat bis duty was to carry messages to tbe different offices about tbe yard wherever they sent him: to tbe freight office, to Mr. Gordon’s office, Mr. Wells’ office, tbe chief car inspector’s office, then over to tbe round bouse and out to tbe conductors on tbe yards. It was an established custom at tbe time of Joe’s death for messenger boys in delivering messages to deliver them as soon as we could get them to their destination, riding, if we could get a chance to ride, on moving trains or ears — any old way; we also rode switch engines. The authorities knew how we were moving around the yard and how we were delivering messages; they saw us use the moving trains. I rode with the train master on the switch engine and there was no objection. We continued the practice of riding the cars and engines in the yard without objection as long as we were around there. When we were at work, Pettitt rode on the engines and coaches. The yard was busy ordinarily in shifting trains twelve hours a day, seven days to the week; about fifteen tracks in the yard, and the yard was about a mile and one-half long. The most distant point for delivering a message was about a mile. I saw Joe the day he was killed in the early part of the morning. He had some messages in his hand, said he had to go to Mr. Gordon’s office to carry a message. So he went on over and carried the message, and I saw him after that delivering messages.”

He says he did not testify at the former trial as he was down in Georgia.

Another witness, J. W. Batts, testified that he “saw Joe Pettitt pass. He was a small boy wearing knee pants; looked to be 11 or 12; saw him just before he was killed. He was hanging upon the corner of a car that was being moved by the defendant’s engine attached to the car. He was hanging to the ladder attached to the bottom of the car. He had his feet on the step of the car and his hand on the grab iron. About a minute after he saw Joe on the moving car he heard somebody scream. He went down there and Joe Pettitt had been run over. His leg was cut off and on the track. He said these shifting cars would barely clear one another, but might not clear a man swinging on the car. There was very small space between the cars. The leg was cut off and was lying on the track when he got there.”

Two of the affirmative opinions in the former ca.se were based upon the express ground that there was no evidence that the little boy was on duty in the service of the defendant at the time he was killed. If, therefore, these witnesses had been obtainable at the time, the decision at the former hearing must have been different. It was for the jury to say (if anybody could have denied it) that this service was not only dangerous, but exceedingly so. As was said in one of the dissenting opinions at the former hearing: “In this case, a child under 12 years of age, under-grown and therefore known to be immature, was set to work by the defendant in a most dangerous place, exposed to be run over by the constantly passing trains and shifting engines, crossing eighteen or more tracks to carry messages which might have been sent by telephone. He was found on the track in the yard with his leg cut off. Under our decisions the company could not show contributory negligence, and neither pleaded nor offered to show any. It was the duty of the defendant to show that they had instructed all employees, much more a child placed in such employment, of its dangers. The defendant did not show this.”

And it was also said: “It will be asked by future ages as well as the present, why an innocent child of immature age should have been subjected to such perils so far beyond his comprehension. This record gives the answer. His mother had seven other children to support and he had a step-father, and, in this combination of circumstances, their mother testifying that she did not know the dangerous nature nor the character of the employment, and indeed did not consent to his being employed. The defendant was able to secure this child’s services for the munificent sum of $12.50 per month. This was truly ‘the price of innocent blood.’ Had the defendant employed a man or a boy of mature years, it would have had to pay for his services more in proportion to the peril. Such a person would have known the danger and would have charged for the risk. By employing these little children the defendant was able to cheapen, to that extent, by the competition, the price of other labor. There was no evidence on this trial of warning or instruction given, to the little boy by the men who exposed him to this dangerous service, and no cause shown why telephones were not used across these tracks to avoid exposing any one to such dangers. We held in Greenlee v. R. R., 122 N. C., 977, and in Troxler v. R. R., 124 N. C., 189, that the fact that ‘it would have cost the defendant company some expenditure to put in automatic couplers would not be any defense to the exposure of the employee to unnecessary danger.’ ”

In regard to the danger of this particular employment, it is well known from the governmental reports that the number of workmen killed or maimed in this country every year in industrial accidents is larger by much than the total number killed and wounded in both armies in the four years of the great Civil War. For this reason, public sentiment has been demanding more and more the use of devices that will prevent or reduce the danger in many employments. This has been shown by marked advance in the legislation in probably all the States, certainly in this and in the national Legislature. Indeed, 'it may well be said again that this little boy “was sent to his death by exposure to an accumulation of perils, greater to him in his unguarded and unwarned innocence than that which met the charging column of brave men on Cemetery Eidge. Many soldiers survived four years of war. This child was slain on the fourth day of his employment.” This was said in this case, 156 N. C., 136, and in the interests of the humane and just administration of the law it should be repeated here.

To take tbe very strongest view of tbis case for tbe defendant upon these facts, it was a question for tbe jury to say whether or not tbe deceased could appreciate tbe dangers and knew bow to avoid them. Turner v. R. R., 40 W. Va., 675; 4 Thompson on Negligence, sec. 498.

Tbe place where tbe child was put to work being a dangerous one, tbe question was open for tbe jury to pass upon tbe negligence of tbe defendant. Cahill v. Stone Co., 19 L. R. A. (N. S., 1094); Lynch v. Mardin, 1 Q. B., 29; Pressly v. Yarn Mills, 138 N. C., 416.

On tbe former bearing one of tbe judges-put bis opinion upon tbe ground that there was no legislation to prohibit tbe exposure of a child of tbis age to any danger in tbis employment, though tbis opinion was not expressed by any one else. Tbe present statute does prohibit tbe employment of “any one under 14 years of age” in messenger or delivery service. C. S., 5032. While that would not be applicable to tbis case, it is a confirmation of what is said in Pressly v. Yarn Mills, 138 N. C., 410. “Tbe law grows more just with tbe growing humanity of tbe age and broadens with tbe process of tbe suns.”

Tbis being a nonsuit, tbe evidence must be taken in tbe most favorable aspect to tbe plaintiff and with tbe most favorable inferences which can be drawn from it by tbe jury. There is no conflict in tbe evidence of tbe five witnesses who have testified. But tbe whole record is before us and it should not pass without comment that tbe boy was killed on Sunday, 28 April, 1907; bis mother took out letters of administration on 13 May, 1907; summons served on 14th of tbe same month, but tbe judgment of tbe nonsuit was entered four years thereafter at June Term, 1911, below and in October here.

Tbe mother having confidence in her case, doubtless owing to tbe fact, as appears from tbe above, that tbe former opinion was rendered against her for tbe failure of witnesses to appear who would have proved that her son was “on duty” át tbe time of bis death, brought a new action on 5 January, 1912; summons served tbe same day. She died in 1921, and her oldest son took out letters of administration on 5 May, 1922, and was substituted as plaintiff.

From tbe date of tbe death of tbe boy to tbe present time has been more than 16 years. During that time approximately 100 terms of tbe court, with probably 150 weeks of session, have been held in Edgecombe County (including special terms), and there has been a change of personnel of tbe presiding judge more than 32 times. If tbe little boy bad lived be would be now in bis 28th or 29th year.

More than 700 years, ago tbe barons at Runnymede compelled tbe king to put in Magna Carta tbe pledge that justice would be “neither delayed nor denied,” and tbis Court has several times, said that “a delay of justice is often a denial of justice.”

Tbe American Bar Association, composed of some 20,000 lawyers and judges, bave in tbe last few days issued a statement declaring tbat disrespect of, and even hostility toward, tbe courts was alarmingly on tbe increase throughout this country. Tbe deceased was receiving for bis dangerous and arduous services of twelve hours a day, seven days in tbe week, tbe payment of $12.50 a month. If tbe defendant deemed tbat tbe claim-was not just, it was within its rights, if it saw fit, to defend tbe action, but in common humanity and as a matter of sound policy, tbe prompt decision of a court should bave been procured. Tbe State owes to its people to see tbat in some way such unreasonable delay as this is shall not be possible, especially where tbe recovery is sought by a laborer who needs whatever compensation is justly due him. .

Whatever tbe effect, tbe criticisms by tbe Bar Association in tbe address, participated in as it was by the Chief Justice of the United States, may bave on tbe public, so far as it is based, as stated therein, on delays and technicalities by tbe courts in tbe administration of justice, it is entitled to our respectful consideration and should be remedied by tbe courts. It is as unwise to ignore such a state of facts as appears upon this record as it' is unjust not to prevent it. We do not seek to place tbe blame — whether tbe delay in this instance was caused by an insufficient number of courts, or in tbe method of their administration or for any other reason. Tbe surest way to insure relief of any grievance is to give publicity to tbe most glaring cases, at least tbat those seeking justice may receive it in accordance with tbe solemn pledge more than 700 years old tbat “To no man will we sell, or deny, or delay, right or justice.”

Though tbe plaintiff has already waited 16 years during which be has been denied tbe right to trial by jury to which be is entitled, be has now in addition, when tbe case goes back, to wait tbe yet unknown number of years before be can bave bis rights passed upon.

We bave on more than one occasion bad occasion to comment upon tbe unnecessary delays and technicalities in trials of .which Chief Justice Taft and other judges bave spoken in their opinions as well as in addresses, as being too common in tbe administration of justice. Among them see Penny v. R. R., 161 N. C., 530, where tbe delay bad been for 15 years, and there bad been four trials. “There are others” which bave not been thus brought to tbe attention of tbe public. In this case, tbe plaintiff has not yet bad tbe opportunity to bave bis facts passed upon by a jury.

Tbe plaintiff is entitled to bave this case submitted to tbe jury upon proper instructions as to tbe law applicable. Tbe judgment of non-suit is

Eeversed.

Stacy, J., concurring: This case, as now presented, is different from wbat it was on the first appeal; otherwise our former decision would constitute the law of the case, both in subsequent proceedings in the trial court and also on a subsequent appeal here. Nobles v. Davenfort, 185 N. C., 162; Lewis v. Nunn, 182 N. C., 119; Public Service Co. v. Power Co., 181 N. C., 356. But I think the evidence appearing on the-present record is sufficient to carry the case to the jury, ánd for this reason I concur in the reversal of the judgment of nonsuit.

It now appears, as it did not appear before, or at least there is evidence from which the jury may find, that plaintiff’s intéstate was at work for the defendant and in the discharge of his duties when he received his fatal injuries. In this state of the record the defendant’s motion for judgment as of nonsuit should, have been overruled.  