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Commentaries on the law of negligence in all relations online

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cannot escape liability on the ground that the servant was directed
where to work by a fellow servant 12

§ 3819. Instances of this Liability. — It was so held where the fore-
man of an establishment required a minor employe to clean machin-
ery while in motion, although this was within the scope of his employ-
ment ; 1Z and where an employer placed an apprentice sixteen years old
at the work of fastening a scaffolding, it being a question for the jury
whether this was the exercise of due care in behalf of the servant ; 14
and where a boy ten years old, employed in a coal mine, was directed
to couple coal-c%rs and was injured in the attempt. 15

in the same common employment:
Fisk v. Central Pac. R. Co., 72 Cal.
38; s. c. 13 Pac. Rep. 144. As the
child was obliged to obey the orders
of the foreman, the negligence of
the foreman was the negligence of
the master.

"Foley v. California Horseshoe
Co., 115 Cal. 184; s. c. 47 Pac. Rep.
42. Compare Fisk v. Central Ac. R.
Co., 72 Cal. 38; s. c. 13 Pac. Rep. 144.
A complaint alleging that a child
was killed in consequence of the
negligence of a superintendent un-
der whose orders he was at work,
and which orders he was bound to
obey; and that the child was by its
father hired to the common master
of both the child and the superin-
tendent to do a particular kind of
work, which was not dangerous,
and was by the superintendent,
without the father's knowledge or
consent, required to do other work,
which was dangerous, without be-
ing instructed as to the danger, or
as to how to do the work, and was
in consequence killed, — is not de-
murrable; since the general rule of
law exempting a master from liabil-
ity for injuries caused by the neg-
ligence of a coemploye, does not ap-

ply to the case of a child injured
or killed in consequence of the neg-
ligence of a superintendent under
whose orders he was at work, and
which he was bound to obey: South-
ern Agricultural Works v. Franklin,
111 Ga. 319; s. c. 36 S. E. Rep. 693.

"Noblesville Foundry &c. Co. v.
Teaman, 3 Ind. App. 521; s. c. sub
nom. Teaman v. Noblesvllle Foun-
dry Ac. Co., 30 N. B. Rep. 10. In
Illinois, the negligence of an em-
ployer in putting a boy thirteen
years of age at work in a factory
within a few inches of an unpro-
tected buzz-saw, in violation of a
statute prohibiting such employ-
ment without a certificate from the
school board, renders it liable for
an injury to the employe, although
the negligence of a fellow servant
contributed to the accident: Morris
v. Stanfleld, 81 111. App. 264.

"Robertson v. Cornelson, 34 Fed.
Rep. 716.

"Henry v. Brady, 9 Daly (N. Y.)

"Brazil Block Coal Co. v. Gaff-
ney, 119 Ind. 455; s. c. 4 L. R. A.
850; 6 Rail. & Corp. L. J. 152; 21
N. E. Rep. 1102. Compare (Joins v.
Chicago Ac. R. Co., 47 Mo. App. 173.


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4 Thomp. Neg.] duties and liabilities of the masteb.

Article VI. Injuries to Minor Servants.


3821. Preliminary.

3822. Grounds of recovery generally

for injuries to minor serv-

3823. Liability where the minor is

employed without consent
of parents or guardian.

3824. Children employed without

authority of master.

3825. Status of minor servants who

procure employment by
falsely representing them-
selves to be of age.

3826. Liability for employing mi-

nors who are too young
and inexperienced.

3827. Status of children employed

in violation of statute.


3828. Minor engaging temporarily

In service.

3829. Duty to protect child-servant

from dangers.

3830. Duty to guard dangerous ma-

chinery with which child-
servant is liable to come in

3831. Care required in protecting

minor employes in other

3832. When the minor employe is

deemed to assume the risks
of the employment

3833. Failure of master to conform

to other statutory require-

§ 3821. Preliminary. — The liability of employers for injury to
minor employes arising from the failure of employers to warn and in-
struct them concerning the danger of the employment, or concerning
any unusual dangers attending a special service into which they are
ordered, will be considered in another place. 1 It is now proposed to
consider some other questions relating to the liability of employers
for injuries to minor employes.

Grounds of Becovery Generally for Injuries to Minor

Servants.— In the case of children it is the duty of the employer to
take notice of their age and disability, and to use ordinary or rea-
sonable care to protect them from risks which they cannot properly
appreciate, and to which in the course of their employment they should
not be exposed. 2 On the other hand, a minor fourteen years, old can-

1 Post, § 4091, et seq.

8 Rummell v. Dilworth, 131 Pa. St
509; s. c. 20 Pitts. L. J. (N. S.) 311;
25 W. N. C. (Pa.) 409; 47 Phila.
Leg. Int. 224; 19 Atl. Rep. 345 (in-
jury to a boy seventeen years old
employed for one duty in iron-mill,
allowed to perform different duty
properly to be discharged by an-
other employ^, and dangerous be-
cause of absence of sufficient pro-
tective appliances — question for
jury whether he had been suffi-


ciently warned and instructed, or
whether all reasonable precautions
to protect him had been taken — re-
covery allowed). According to
French-Canadian law, the employer
must take the necessary precautions
to avoid accidents to the employes
which can be foreseen, even as a
result of their imprudence, inexpe-
rience, or inability, and is liable for
an unexpected accident to an em-
ploys during a dangerous employ-
ment ordered by him, especially

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not recover for an injury alleged to have been caused by a defective
machine at which he was at work, without evidence that the defendant
had not exercised ordinary diligence in furnishing a machine equal in
kind to that in ordinary use, and reasonably safe for one operating it,
and where, on the contrary, the evidence shows that by the use of such
care as his age and experience fitted him to exercise, he could have
avoided the injury. 8 One decision announces the proposition that
the mere fact of minority does not, of and in itself, necessarily impose
upon an employer any other or greater degree of care in respect of the
minor employ6 than if the latter had attained full age ; but that it is
only where the minor is immature in mental and physical faculties and
capacity that the law requires that the master must have special regard
for him. 4 It is true that the theoretical measure of care which a mas-
ter owes to his servant is the same in the case of minors and adults, and
passes under the designation of reasonable or ordinary care. But here,
as in other cases, 5 reasonable or ordinary care is a care in proportion to
the danger; and the danger is much greater in the case of infant than
of adult employes, and the care and attention of the master increases
accordingly in the case of child-servants.

§ 3823. Liability where the Minor is Employed without Consent
of Parents or Guardian. — The mere fact of the employment of a minor
in a dangerous service without the consent of his parents or guardian,
is not of itself, as a general rule, imputable to the employer as culpable
negligence. 6 There are, on the other hand, holdings to the effect that
if a minor has not the mental capacity and experience to appreciate
the dangers of a particular employment, a master who employs him
therein, without the consent of his parents, knowing that he is a
minor, becomes liable to him pef quod in case of an injury happening

when the employs is an infant un- • Pennsylvania Co. v. Long, 94

acquainted with the danger in- Ind. 250; Texas Ac. R. Co. v. Carl-

curred, and having neither the pro- ton, 60 Tex. 397; Toledo Ac. R. Co.

dence nor experience necessary to v. Trimble, 8 Ind. App. 333; s. c. 35

protect himself: McCarthy v. N. E. Rep. 716. A statute prohibit-

Thomas Davidson Man. Co., Rap. ing the employment of children un-

Jud. Que. 18 C. S. 272 (in French), der fourteen years of age without

* Roberts v. Porter Man. Co., 110 the written permission of the parent
Ga. 474; & c. 35 S. E. Rep. 674 (had or guardian, will not make an em-
worked on spinning-machine for ployer liable for injuries to a child
two years, and was injured by twelve years old from falling
catching his finger in unguarded against uncovered cogwheels of
cogwheels, the danger from which which he knew the danger, in a
was obvious). scuffle between him and another

4 Alabama Ac. R. Co. v. Marcus, boy; since the failure to obtain the
115 Ala. 389; s. c. 22 South. Rep. written consent of the parents was
135 (section-hand, nineteen years not the proximate cause of the in-
old, thrown from hand-car running jury: Borck v. Michigan Bolt Ac.
at high rate of speed). Works, 111 Mich. 129; s. c. 3 Det.

•Vol I, f 25; ante, § 3772. Leg. N. 595; 69 N. W. Rep. 254.


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4 Thomp. Neg.] duties and liabilities of the master.


through his lack of years and experience ; 7 and this without reference
to the inquiry whether the negligence or other misconduct of the minor
contributed to the injury, or whether it was to be ascribed to the negli-
gence of his fellow servants. 8

§ 3824. Children Employed without Authority of Master. 9 — It has

been held that a railroad company is not released from liability for an
injury to a boy between ten and twelve years of age, resulting from
the explosion of a torpedo which it negligently left on the track at a
place used by the public, including children, by the fact that he was at
the time engaged in performing the duties of an employ^ of the Tail-
road company under an employment by such employ^, though such em-
ployment was not known or authorized by the company. 10

§ 3825. Status of Minor Servants who Procure Employment by
Falsely Representing Themselves to be of Age. — A minor who, in his
application for employment to a railway company, falsely answers that
he is of age, and secures employment in violation of a known rule
against employing minors, does not thereby become a trespasser, while
so employed, or forfeit his right to protection as an employe", when
actually engaged in the company's service, but must be judged by the
same rules of negligence as an adult. 11

§ 3826. Liability for Employing Minors who are Too Young and
Inexperienced. — Speaking generally, a master is liable for taking into
his service, especially where the service is hazardous, a >minor who is
too young and inexperienced to appreciate and guard against the dan-
gers of the service, although the requisite instructions are given him. 12

7 Gulf Ac. R. Co. v. Jones, 76 Tex. 10 Cleveland Terminal &c. R. Co. v.
350; s. c. 13 S. W. Rep. 374; Goff v. Marsh, 17 Ohio C. C. 1; s. c. 9 Ohio
Norfolk &c. R. Co., 36 Fed. Rep. C. D. 548

299. "Lake Shore &c. R. Co. v. Bald-

8 Texas Ac. R. Co. v. Brick, 83 win, 19 Ohio C. C. 338; s. c. 10 Ohio
Tex. 526; s. c. 18 S. W. Rep. 947. C. D. 333.

The fact that a minor employed by "Hickey v. Taaffe, 105 N. Y. 26;
a news company to sell papers on s. c. 12 N. E. Rep. 286; 7 Cent Rep.
railroad-trains, was employed with- 72; Gulf Ac. R. Co. v. Jones, 76
out his parents' knowledge, will not Tex. 350; Railway Co. v. Fort, 17
render the company liable in dam- Wall (U. S.) 553. -Speaking with
ages for an accident causing his reference to this subject it has been
death, unless it was caused by the well said: "Very young persons
negligence of the company: Mc- rarely appreciate danger to its fuli-
Mellen v. Union News Co., 144 Pa. est extent, and for the performance
St. 332; s. c. 22 Atl. Rep. 706 (death of a dangerous task are liable to
caused by jumping off train while overrate their capacity. It, there-
it was in motion, in violation of fore, follows that before engaging
express instructions — nonsuit prop- them by their own contract in a
er). hazardous employment, the em-
•See post, § 3828. ployer should know that they have

103 '

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[2d Ed.

Upon the question of what will charge the employer with notice of
the minority of the employe, it has been held that the knowledge of a
yardmaster, empowered to employ and discharge employes in a rail-
way-yard, and also of the yard-foreman by whom a minor was put to
work in the yard, as to such minor's minority and inexperience, is the
knowledge of the railroad company. 18

§ 3827. Status of Children Employed in Violation of Statute. 14 —

Upon this subject one idea is, that the hiring of a boy under twelve
years of age in violation of a statute declaring it to be a misdemeanor,
constitutes negligence per se, such as will render the employer liable
for all injuries suffered in consequence of and in the course of the em-
ployment. 14 Another view is, that to employ a child in violation of
such a statute to operate a dangerous machine is evidence of negli-
gence in case the child is injured while so working, because the statute
indicates that such children are unfit by reason of their immaturity
and indiscretion to be so employed. 15 But the view which more nearly
comports with juridical analogies is, that such an unlawful employ-
ment of a child does not per se constitute negligence which will render

the necessary capacity antf experi-
ence to do the work In safety, or be
prepared to take such measures by
way of instruction as will secure the
same end": Gulf Ac. R. Co. v. Jones,
76 Tex. 350, 353. That the fact that a
telegraph-operator Is but seventeen
years of age is Insufficient to make
his employment negligence on the
part of a railroad company, when
he has had a year's experience, Is
perfectly conversant with the rules,
and a first-class operator, — see
Sutherland v. Troy Ac. R. Co., 125
N: Y. 737 (mem.); s. c. 35 N.^T. St
Rep. 853; 26 N. B. Rep. 609. There
is a holding, by a divided court, that
it is not negligence to employ a lad
seventeen years and ten months old
as a railway brakeman, in the ab-
sence of evidence that the defend-
ant had knowledge of his age or
that his appearance put the de-
fendant upon inquiry as to his age,
so as to charge the defendant with
damages for an injury to the minor
while engaged in the dangerous op-
eration of making what is called a
"flying switch": Youll v. Sioux City
&c. R. Co., 66 Iowa 346. Compare
McDermott v. Iowa Falls &e. R. Co.
(Iowa), 47 N. W. Rep. 1037; orig-
inal opinion withdrawn and rehear-

ing granted, 85 Iowa 180; s. c. 52
N. W. Rep. 181.

"Missouri Pac. R. Co. v. King, 2
Tex. Civ. App. 122; s. c. 20 S. W.
Rep. 1014.

"See also, post, §§ 4599-4601.

"a Queen v. Dayton Coal &c. Co.,
95 Tenn. 458; b. c. 30 L. R. A. 82;
49 Am. St. Rep. 935; 32 S. W. Rep.

18 B. P. Breckenridge Co. v. Rea-
gan, 22 Ohio C. C. 71; s. c. 12 Ohio
C. D. 50. This was the view taken
of the Btatute of New York (N. Y.
Laws 1876, ch. 122) by one of the
departments of the Supreme Court
of that State: Cooke v. Lalance Ac.
Man. Co., 33 Hun (N. Y.) 351; but
reversing this decision the Court of
Appeals of that State held, on the
authority of its own contemporane-
ous decision (Hickey v. Taaffe, 99
N. Y. 204; rev'g s. c. 32 Hun (N.
Y.) 7), that, in order for an occu-
pation to be within the purview of
the statute, it must either be vi-
cious of Itself, or partake of the na-
ture of an amusement, and that the
statute did not apply to a useful or
necessary business occupation, or a
productive industry: Cooke v. La-
lance &c. Man. Co., 99 N. Y. 649.


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4 Thomp. Neg.] duties and liabilities op the master.

the employer liable for injuries to the child, where such employment
is not the direct or proximate cause of the injury. 16

§3828. Minor Engaging Temporarily in Service. — Where the
minor engages temporarily in the service, in pursuance of the invita-
tion of a servant of the master, his right to recover damages, predicated
upon a failure of duty toward him on the part of the master, will de-
pend upon whether the servant inviting him into the service or engag-
ing him therein, had authority so to do. 17 Thus, it has been held
that a railroad company is not liable for an injury to a boy fifteen
years of age, suffered while he was acting as brakeman upon the invi-
tation of the conductor of the train, where the latter had no authority
to give such invitation. 18 Where the circumstances are such that the
right of the minor to recover damages does not depend on the relation
of master and servant subsisting between him and the defendant, but
he stands in the mere position of one person injured by the neg-
ligence of another without fault of his own, — then, of course, the
rule is different and he may recover damages. Thus, where an em-
ploy6 of a railroad company, while engaged in repairing one of its
cars, called on his son, eleven years old, to temporarily assist him in
holding a timber, and while so engaged, without negligence on the
part of either, the son was injured by the negligence of another com-

"Belles v. Jackson, 4 Pa. Dlst.
Rep. 194 (boy employed to carry
bobbins back and forth In a rope
factory, Injured while voluntarily
meddling with unfenced machin-
ery, though warned not to do so by
the operator of the machine — non-
suit proper). Proof of the violation,
of the Ohio statute making it a
crime to employ in a factory a
child under twelve years of age is
not, in itself, sufficient evidence of
negligence to justify a recovery in
an action for injuries to such child
alleged to have been caused by the
defendant's negligence: Evans v.
American Iron &c. Co., 42 Fed. Rep.
519. The mere employment of a
boy under twelve years of age in a
factory, contrary to the provisions
of Sanb. & B. Wis. Ann. Stat,
§ 1728, is not such negligence as
will render the employer liable for
an injury to such boy while operat-
ing a planer in the factory: Kutch-
era v. Good Willie, 93 Wis. 448;
8. c. 67 N. W. Rep. 729. This is in

accordance with the later construc-
tion of the New York statute al-
ready alluded to, which is, that the
employment of a child in violation
of the statute is only an eviden-
tiary fact bearing on the question
of negligence; so that, in order to
charge the master with liability
for an injury to such employs,
other negligence on the part of the
master must be shown, as well as
the absence of contributory negli-
gence on the part of the minor:
White v. Wittemann Lith. Co., 58
Hun (N. Y.) 381; s. c. 34 N. Y. St.
Rep. 895; 12 N. Y. Supp. 188; s. c.
aff'd, 131 N. Y. 631; 30 N. E. Rep.
236. Whether the occupation was
dangerous within the meaning of
the New York statute, has, been
held a question for the jury: Hiek-
ey v. Taaffe, 32 Hun (N. Y.) 7;
s. c. rev'd, as to another point, 99
N. Y. 204; 1 N. E. Rep. 685.

11 Ante, $ 3824.

"Hot Springs R. Co. v. Dial, 58
Ark. 318; s. c. 24 S. W. Rep. 500.


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patty, — it was held that the son could recover from the latter com-
pany. 1 *

§3829. Duty to Protect Child-Servant from Dangers. — An em-
ployer is liable for an injury to a minor who has had no experience,
and is not instructed, in regard to dangerous machinery, resulting from
the negligence of an employ^ in charge of the premises in permitting
the minor to remain near such machinery and failing to take reason-
able measures to prevent the injury. 20 Whether a master was negli-
gent in directing an immature boy, fourteen years old, who had been
employed to do such work around a factory as should be suited to his
capacity, and which had consisted theretofore of simple and safe work,
to perform a dangerous operation, in the course of which the boy was
injured, depends upon the capacity of the boy to undertake work of
the character required, which is a question for a jury. 21

§ 3830. Duty to Guard Dangerous Machinery with which Child-
Servant is Liable to Come in Contact. — If machinery is exposed in
such a manner that children employed in the establishment are likely
to be caught in it and killed or injured, then it is the duty of an em-
ployer to fence, cover or guard such machinery if he can do so con-
sistently with the reasonable and practicable conduct of his business. 22
The statutory duty imposed upon a master of seeing that dangerous
machinery is properly guarded, applies only to those parts of the ma-
chinery which, in reasonable anticipation, may be a source of danger to
operatives. It is not within the reasonable expectation of an employer
that a child should attempt to adjust material passing through a
swiftly-moving machine, which was in no way connected with the
child's work* in another part of the room ; and for an injury to a child-
servant thus received, the master is not liable. 28 But if the master
has properly covered and fenced a dangerous machine or place, in

'• Pennsylvania Co. ▼. Gallagher, n King v. Ford River Lumber Co.,

40 Ohio St. 637; s. c. 48 Am. Rep. 93 Mich. 172; s. c. 53 N. W. Rep.

689. 10; post, § 4017, et seq.

•White v. San Antonio Water- "Byrne v. Nye &c. Carpet Co., 46

works Co., 9 Tex. Civ. App. 465; App. Div. (N. Y.) 479; s. c. 61 N. Y.

s. c. 29 S. W. Rep. 252 (set at work Supp. 741. So, the failure of an

wiping grease off of moving ma- employer to provide proper safe-

chlnery). guards to machinery will not ren-

n Hayes v. Colchester Mills, 69 der him liable to a minor em ploy 6

Vt. 1; 8. c. 37 Atl. Rep. 269 (plain- injured upon voluntarily undertake

tiff, while folding a belt off the ing to play with the machinery

shaft so that it would not creep after having been warned to have

while being mended by another em- nothing to do with it: Belles v.

ployg, was caught by the belt and Jackson, 4 Pa. Dist. Rep. 194.
injured — judgment for plaintiff was


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4 .Thomp. Keg.] duties and liabilities op the master.

compliance with a statute, but the covering is removed by a fellow
servant, in consequence of which a minor servant is injured, then the
master will not be liable, especially where the contributory negligence
of the injured servant is shown, although the dangerous place has
often been thus uncovered before. 24 It has been held that the failure
to fence what is called a winder in a cotton factory, whereby the hand
of a boy thirteen years old was caught and injured, was not imputable
to the employer as negligence, since a winder is not a particularly dan-
gerous machine ; but that if the boy had been sufficiently instructed
concerning the danger, the duty of the company to him was per-
formed, 25 — a conclusion which may be regarded as questionable, in the
absence of evidence to the effect that it was not convenient or practica-
ble to fence the winder.

§ 3831. Care Required in Protecting Minor Employes in Other Re-
spects. — It is a just conclusion that the minor employ6 does not ac-
cept the ordinary risks of the service in the same sense as an adult em-
ploye does; but that the employer is under a duty to the minor to
exercise a degree of care, to the end of protecting him from the dan-
gers of the service, proportionate to his youth and inexperience. 26
The true theory is, that the obligation which the law everywhere puts
upon the master, 27 of exercising reasonable care to the end that the
machinery, appliances and premises about which his servant is re-
quired to work are made and kept in a condition of safety, is appli-
cable with increased force in the case where the servant is a minor.
In such cases it is a sound conclusion that the degree of care which the
law puts upon the master, to the end that the machinery, appliances
and premises, about which the infant servant is required to work, shall
be safe, due regard being had to the necessary dangers of the same, —
increases with the lack of years and capacity of the servant. 28 The

* Honor v. Albrlghton, 93 Pa. St. whereby a boy fourteen was in-

475. This decision, however, seems jured: Hoehmann v. Moss Engrav-

to be a violation of the rule that lng Co., 4 Misc. (N. Y.) 160; s. c.

the master is bound not only to 53 N. Y. St. Rep. 195; 23 N. Y.

make, but also to enforce, reasona- Supp. 787. The text seems to be

ble rules for' the protection of his well illustrated by a case where a

servants: Post, § 4161. boy fifteen years old was employed

25 Rock v. Indian Orchard Mills, to feed a defective press, and there

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 20 of 165)