Ward v. . Odell

FURCHES, J., did not sit. Justice Furches, having been counsel in the cause, did not sit on the hearing of the appeal. The Court being equally divided in opinion, the judgment for that reason stands, but not as a precedent.

The case was heretofore before the Court, and new trial granted. Reported in 123 N.C. 248. Mr. Justice Furches having been of counsel does not sit, and the Court being equally divided, the judgment below is affirmed. Boone v. Peebles,ante, 824, and cases there cited.

The only error found by the two members of the Court who favor a new trial, is the following instruction: "If the jury should find from the evidence that, at the time of the injury complained of (947) the plaintiff was only 11 years of age, and that, on account of his tender years, his immaturity and inexperience, he did not fully realize and know the danger he incurred in passing said work-bench where wires were being cut, he was guilty of no contributory negligence in so doing." If this instruction had read, "did not fully realize and know the danger, if any, he incurred," it is conceded there would have been no error. But the jury could not possibly have been misled into thinking that the judge meant to decide the issue of fact that there was danger, when he had repeatedly told them that this was a question of fact for the jury. The whole charge must be construed together, and not a detached sentence. S. v. Boone, 82 N.C. 637. This is not the case where the judge has given two contradictory instructions as to the law; in which case the jury may well be confused as to which to take. But, here the whole charge taken together is perfectly intelligible and consistent. Juries are presumed to be intelligent and honest, and are as much an integral part of our court system as the judges, and in their department probably make as few mistakes in finding the facts as the judges do in finding the law or in applying it.

Besides, the fact that the plaintiff was injured and lost his eye at or near that bench is conclusive that there was danger, res ipsa loquitur, and the jury in no aspect were prejudiced by the inadvertent omission of the words "if any."

The judge very properly adverted to the immaturity and inexperience of a child 11 years of age employed in a large manufactory filled with dangerous machinery, and told the jury correctly that if that was the cause of his approaching the danger he was not guilty of contributory negligence. The humanity of the age has in very many of the (948) States placed on the statute books laws forbidding the employment of children under 14 years of age in factories. So far as these statutes are based upon the inhumanity of shutting up these little prisoners eleven and one-half to twelve hours a day (the ordinary factory hours in this State according to the State's official publications) in the stifling atmosphere of such buildings, or depriving them of opportunity for education, or using the competition of their cheap wages to reduce those of maturer age, these are arguments on matters of public policy which must be addressed solely to the legislative department. But there is an aspect in which the matter is for the courts, that is, whether it is negligence perse for a great factory to take children of such immature development of mind and body and expose them for twelve hours per day to the dangers incident to a great building filled with machinery constantly whirring at a high speed. The children without opportunity of education, without rest, their strength overtaxed, their perceptions blunted by fatigue, their intelligence dwarfed by their treadmill existence, are over-liable to accidents. Can it be said that such little creatures, exposed to such dangers against their wills, are guilty of contributory negligence, the defense here set up? Does the law, justly interpreted, visit such liability upon little children? From the defendant's brief it would seem that this child had been put to work in the factory at eight or nine years of age, as it states he had been working there over two years when injured. Whether they are thus imprisoned at work too early by the necessities of their parents or not, it is not the consent of the children. It is not law, as the appellant's counsel insists, that the factory company is not liable because the father hired the child to the company. It is the child's eye which was put out, not the father's. The father could not sell his child, nor give the company the right to expose him to danger. The factory superintendent put these (949) children to work, knowing their immaturity of mind and body, and when one of them, thus placed by him, in places requiring constant watchfulness, is injured, every sentiment of justice forbids that the corporation should rely on the plea of contributory negligence.

The judge certainly committed no error in leaving it to the jury to find that there was no contributory negligence, if the child incurred the danger, which put out his eye, by reason of his ignorance arising from his immaturity of years and inexperience.

Affirmed.