
    MARCUS v. LOANE.
    (Filed September 22, 1903.)
    1. OPINION ON EVIDENCE — Evidence—Negligence.
    In an action to recover damages for a personal injury, it is error for tlie trial judge, in his instructions, to say to the jury “Was it due care to put the boy in charge of the engine without warning?” where the main question in dispute was whether the boy was in charge of the engine without having been properly warned.
    2. NEGLIGENCE — Proximaie Cause — Damages.
    In an action to recover damages for personal injuries, it is error to instruct that if the machinery was out of order, as contended by the plaintiff, and the defect was known by the defendant, the defect constituted a continuing negligence on the part of the defendant, and it was not contributory negligence on the part of intestate of plaintiff to do what he did, without adding “if the negligence of the defendant was the proximate cause of the injury.”
    ActioN by A. Marcus, administrator, against G. D. Loane and Company, beard by Judge M. II. Justice and a jury, at April Term, 1903, of tbe Superior Court of Washington County. From a judgment for tbe plaintiff tbe defendants appealed.
    
      
      W. M. Bond and Rodman & Rodman, for tbe plaintiff.
    
      H. 8. Ward and G. W. Ward, for tbe defendants.
   CoNNOR, J.

Tbis is an action brought by tbe plaintiff administrator of Peter Marcus, deceased, for damages alleged to bare been sustained by reason of tbe death of his intestate, caused by the negligence of tbe defendant. Tbe plaintiff testified that be was tbe father of Peter Marcus; that tbe deceased was about fifteen years of age at tbe time of bis death; that the deceased first worked on tbe lumber yard of tbe defendant, and quit and went in tbe bo-use at defendant’s mill about nine or ten days before be was hurt. Tbe testimony tended to show that tbe deceased was employed at tbe defendant’s lumber mill to oil machinery, and that on bis attempting to turn tbe throttle of tbe engine it exploded, whereby be was scalded by hot water from tbe pipes, which resulted in his death.

Tbe theory of tbe plaintiff was that bis intestate was employed to manage and operate tbe engine and was not properly educated in respect to tbe duty, was too young to be put at such work, that be was directed by tbe engineer to start tbe engine, and that tbe engine was in a defective condition.

Tbe theory of tbe defendant was that tbe plaintiff’s intestate was acting outside of tbe sphere of bis employment, turned tbe throttle without tbe knowledge of tbe defendant and without any direction to do so, and failed to turn tbe relief valve below tbe throttle before turning tbe throttle, and that as a natural consequence of tbe act, tbe engine having been at a standstill for several hours by reason whereof tbe steam in tbe pipes just next to and above tbe throttle bad condensed into water, the pressure of tbe volume of water behind from tbe pipes thus set in motion became irresistible. Tbe testimony in respect to tbe several contentions was conflicting.

His Honor in charging tbe jury said that “It was tbe duty of the defendant, if be directed tbe plaintiff’s intestate to manage tbe engine and turn on tbe steam or allowed him to do so in tbe course of bis duties, and if tbe defendant knew that be was young and inexperienced, to instruct him as to its danger, and to use due care in directing bis attention to tbe danger, if any, connected with the engine and valve. It would be negligence in tbe defendant if be employed a boy fifteen years old without experience and put him to running an engine without giving him careful instructions horv to use it, and if that was the proximate cause of tbe injury, you should answer tbe first issue ‘Yes.’ ” To this portion of tbe instruction no objection can be sustained. It was entirely correct. His Honor proceeded immediately to say to tbe jury: “Was it due care to put the boy in charge of tbe engine without warning him of tbe danger, if any, and if not, was that tbe proximate cause of the injury ?” and then to say: “It was tbe duty of tire defendant to exercise due care in tbe employment of tbe boy to do such work as that of managing dangerous machinery, that is, was the hiring of a fifteen-year-old boy to run a mill and manage machinery without warning him of danger, if any, a thing that a prudent business man under tire same circumstances would do ? Was it due care to put the boy in charge of the engine without warning ? Would a reasonable and prudent man do it, and, if not, was that tbe proximate cause ? — that’s the question.” To this charge tire defendant excepted, alleging as ground for his exception that his Honor expressed the opinion, or assumed it as proved, that tbe boy was employed to manage tbe engine. His Honor used the expression, “was it due care to put tire boy in charge of the engine ?” later, repeating this language and saying further: “Was the hiring of a fifteen-year-old boy to run a mill and manage the machinery, etc.” The rule laid down by his Honor for measuring the defendant’s duty, assuming that the jury should find that the deceased was employed to manage the machinery or to run the engine, was clearly correct. The complaint of the defendant is that he assumed the very fact in issue to have been shown; that he should have said to the jury that if they found from the testimony, etc. We are of the opinion, upon a careful examination of the entire charge, that his Honor inadvertently fell into error in the language complained of. The form of expression adopted by him was calculated, we think, to create in the mind of the jury the impression that the only question for them to decide was whether the hiring of a boy of the age of the deceased and putting him in charge of dangerous machinery or running an engine was negligence. If that fact had been found by the jury, with the further fact that he was not properly instructed or properly warned of the danger, the instruction in respect to the law would have been entirely correct; but when the Judge said to the jury “was it due care to put the boy in charge of the engine without warning ?” “would a reasonable and prudent man do it, and, if not, was that the proximate cause ? — that’s the question”— he withdrew from the jury the duty of ascertaining from the testimony whether the defendant had done' the very thing upon which the right of the plaintiff to recover depended, which we think was an expression of opinion in regard to a vital question in controversy. He further instructed the jury that “If you find that the taps had been left off the screws that hold on the throttle-cap, this was a continuing negligence on the part of the defendant, and continued up to the time of the explosion, even though the boy might have ascertained it, and if you find that to be the fact and that was the proximate cause of the injury, you will answer the second issue ‘No.’ ” This instruction is correct, but his Honor proceeded to say to the jury that “If the machinery was out of order, as contended by tbe plaintiff, and that defect was known to the defendant, or might by reasonable diligence have been known, that defect constitutes a continuing negligence on the part of the defendant, because it was his duty to furnish the plaintiff’s intestate with safe and sound machinery, and, if that was the case, it was not contributory negligence in the boy to fail to turn the relief valve, if he did, before turning on the steam, and you will answer the second issue ‘No.’ ” This is practically a rejDetition of the instruction immediately preceding, omitting, however, the very important inquiry whether such negligence “was the proximate cause of the injury.” The negligence of the defendant must be the proximate cause of the plaintiff’s injury to constitute an actionable wrong, and in this respect the last instruction was defective. The jury should not say that because the machinery was out of order the plaintiff was entitled to recover; they must go further and say that the machinery being out of order was the proximate cause of the injury before they can answer the issue in favor of the plaintiff. “The negligence of the defendant, no matter how great, would not of itself render it liable in damages, unless it had contributed to the death of the plaintiff’s intestate.” Edwards v. R. Co., 129 N. C., 78.

Eor these errors the defendant is entitled to a New trial.  