Daniel v. Big Sandy Coal & Coke Co. , 68 W. Va. 490 ( 1910 )

Robinson, Peesident:

This action is one for damages arising from the -death of ® boy under the age of fourteen years caused by his unlawful employment in a coal mine. * The principles applied in the eases of Norman v. Virginia-Pocahontas Coal Co. and Burke v. Big Sandy Coal & Coke Co., decided this term, control decision herein.

The first count of the declaration sufficiently states 'a case. The matters introduced in evidence were provable under it.Therefore, the overruling of the demurrer to the declaration need not be considered in any other particular.

It may be said that the refusal of Instruction Do. 5 is not covered by our decisions in the two cases mentioned above. Be that as it may, the instruction was properly refused. 'It virtually premised that the jury might consider the mere consent of the parent to- the unlawful employment of the boy as the proximate cause of his death. The evidence in the case does not warrant any such premise. The evidence shows plainly that the violation of the statute was the proximate cause of the boy’s death. There are other reasons sustaining the refusal of the instruction which need not be discussed.

All that we said in the opinion in the Burlee Case relative to refused instructions on the subject of contributory negligence applies here. The evidence did not warrant the submission of that subject to the jury.

A thorough consideration of the record brings to view no error prejudicial to defendant. The judgment in- favor of plaintiff will be affirmed.

Affirmed.