Norman v. Virginia-Pocahontas Coal Co.

POBINSON, PRESIDENT:

By the statute law of this State it is provided: “No boy under fourteen years of age * * * * * * *■ shall be permitted to work in any coal mine, and in all cases of doubt, the parents or guardians of such boys shall furnish affidavits of their ages.” Code, Supplement 1909, chaper 1511, section 17. Following this inhibition, punishment by fine or imprisonment is prescribed to be imposed upon any operator, agent or mine foreman who shall be convicted of knowingly violating the mandate. This statute is enforceable as a criminal or penal one. Its terms prescribe no other liability for its violation than fine or imprisonment. The ease which we are now to consider involves the applicability of this statute to a suit for damages arising from an injury alleged to have been caused by its violation.

*407 Though the statute provides only for a fine or imprisonment, still an action lies for damages caused by its non-observance. The plaintiff, if his allegations are true, is one of a class for the benefit of which the statute was enacted. Any boy under the age of fourteen years who is injured by reason of his unlawful employment in a coal mine may maintain a civil action for damages in the premises against the mine operator, agent or foreman who has failed to observe the law and thereby caused the boy’s 'injury. , “One who disobeys the law subjects himself to any proceeding, civil or criminal, which the same law has ordained -for the particular case. In the absence of which ordaining, or in the presence of it when not interpreted as excluding other methods, he is liable to those steps which the common law has provided for cases of the like class; as, to an indictment, or to a civil action, or to both, according to the nature of the offending. The civil action is maintainable, when, and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court.” Bishop on Non-contract Law, section 141.

Many and varied are the views that have been expressed as to the consideration of evidence in regard to violation of a statute in cases like the one at hand. It is not our purpose to cite and review the' decisions on the subject. In explanation of the state of judicial holding in this behalf, it suffices to quote from two well known texts: “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 negli-' gence per se, such as will render’the employer liable for injuries suffered in consequence of and in the course of the employment. Another view is, that to employ a child in violation of such a statute to operate a dangerous machine is evidence of negligence 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. But the view which more nearly comports with juridical analogies is, that such an unlawful employment of a' child does not per se~ constitute negligence which will render the employer liable for *408 injuries to tlie child, where such employment is not the direct or proximate canse of the injury.” IY Thompson on the Law of Negligence, section 3827. “Although the defendant’s violation of a statute or ordinance and the plaintiff’s injuries consequent thereupon be shown, the former will not be liable merely because his act constituted a violation of a state or municipal law, but only if it proximately caused the injuries complained of. It has been held indeed that the same principles as to natural and proximate cause are applicable whether the act alleged to constitute negligence was a violation of a statutory duty or the violation of some duty under general principles of law. And even though violation of a statute or ordinance is held to be negligence per se, causal connection between the act and the injuries must still be .established, which latter requirement shows conclusively that 'where courts lay down the rule that the violation of a statute or ordinance is negligence per se> they do not mean actionable negligence because actionable negligence includes the notion of proximate cause. * * * * * * The cases are notoriously in conflict on the point tinder discussion if their language alone is considered. The statement that the violation of a statute or ordinance is negligence per se is certainly erroneous if actionable negligence is meant, and misleading if only negligence which is not actionable, or negligence ‘without results’, is intended. So it is believed to be an erroneous view that the violation of a statute or ordinance is even prima facie evidence of actionable negligence, in the sense that the jury is bound so to regard it. The true rule is believed to be — and comparatively few cases when carefully studied will be found to be in conflict with it — that the fact that the defendant’s act complained of was a violation of a statute or ordinance is merely a circumstance to be considered by the jury on the question of negligence, except when the court can say as a matter of law that the consequence against which the statute or ordinance was intended to provide have actually ensued from its violation.” 21 Am. & Eng. Enc. Law, 480.

The point is one of first instance with us. We adopt the view that seems consonant with reason. Briefly stated, it is this: The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury. The true question to be determined in an action based upon a *409 failure to obey a statute like tbe one under consideration is: Did tbe unlawful employment cause tbe injury? Tbe trial of tbe case must be guided by tbis question. If tbe injury complained of is a natural and probable consequence of a violation of tbe statute, tben that violation is correctly taken as tbe proximate cause of tbe injury. If tbe very injury lias happened which was intended to be prevented by tbe statute law, that injury must be considered as directly caused by the non-observance of tbe law. But if tbe injury is one that happened by causes independent of tbe violation of tbe statute, it is not actionable on tbe basis of that violation. If an intervening event against which the statute evidently did not intend to provide, and the appearance of which was not anticipated by the spirit and purpose of the act, has in fact caused the injury, that event is plainly tbe proximate cause.

The statute does not provide that an employer shall respond in damages for all injuries sustained by a boy under fourteen years through employment in a coal mine. It merely provides that the employer shall be guilty of a misdemeanor and punished therefor. While the boy may have a civil remedy for injury sustained in the unlawful employment and resort to the violation of tbis statute for evidence of the negligence which caused the injury, still the statute does not say, or even imply, that the employer shall respond in damages other than those given by tbe common law. Tbe statute does not put an absolute liability on him for civil damages. It puts no liability on him in that regard. But it may be shown that be is liable for damages at the common law for an injury sustained by reason of its violation. So as a matter of law it cannot be said that the employer is chargeable in damages with all injuries that result. The evidence must prove that he is chargeable — that the injury indeed proceeded from tbe unlawful employment,

But the doctrines in relation to assumption of risk and of fellow servaney do not apply, if the evidence establishes that the statute against employment of boys in mines lias been violated. If the employment of a boy in a mine is unlawful, be cannot be held to have assumed the risks incident to the employment, among which are those proceeding from the acts of. fellow servants. Assumpjtion of risk must stand upon the contract of employment, whether tbe risks assumed are viewed as *410 proceeding from fellow servancy or other conditions connected with the employment. The employer cannot take advantage of the unlawful ■ contract so as to say that the boy assumed the risks arising from the occupation or from fellow servants. As Judge Taft has stated it, the servant cannot “contract the master out” of the statute. Narramore v. C. C. C. & St. L. Ry. Co., 96 Fed. 298.

The doctrine of contributory negligence, however, is not based upon contract of employment, and is open as a defense in cases like this one. How far that defense may apply in view of the consequences to be anticipated from a violation of the statute, and in consideration of the proximate cause of the injury, is a question to be particularly discriminated in any trial in which the defense is raised in such case as the one before us. In this connection, an excellent authority says: “Where the negligent act of defendant naturally induced or afforded opportunity for the subsequent act of a child, such act being of a character common to youthful indiscretion, and which, concurring with defendant’s earlier wrongful act produced the injuries complained of, the defendant will, in general, be held liable. Children, wherever they go, must be expected to act upon childish instincts and impulses, a fact 'which all persons who are sui juris must consider and take precautions accordingly. A person who places in the hands of a child an article of a dangerous character and one likely to do injury to the. child itself or to others, is liable in damages for any injury resulting which is a natural result of the original wrong, though there may be an intervening agency between the defendant’s act and the injury.” Watson on Damages for Personal Injuries, section 111.

The statute was made to prevent a class of immature youths from subjecting themselves to dangers which they presumably do not have the capacity to appreciate. Thus -it was made to prevent injury to them by their own contributing negligence through the curiosity, indiscretion, or heedlessness that naturally belongs to their age. That contributing negligence from incapacity to appreciate danger and from childish inclination is a natural result of the violation of the statute, and the employer is bound to anticipate it; Therefore, if he disobeys the law, he is chargeable with the results which he should have anticipated, *411 one of which is the' boy’s own negligence because of his years. He is chargeable with any injury which the immaturity of the boy brings on himself, because he is bound to know that the law requires. that he protect the boy against harm from his lack of capacity by not employing him. But the employer is civilly- liable only when he fails to observe the natural and probable consequences of his disobedience to the statute. That statute does not say that he shall be liable in civil damages to every boy under fourteen years who is injured while unlawfully in his service. It is absolutely silent as to- civil damages. But we know that an employer may be held civilly liable by common law principles when a youth under that age is injured because incapable of appreciating the dangers to which the employment subjected him. The employer must observe the incapacity of youth. But if a boy, though under fourteen years, is not so immature as is merely presumed from his age, and actually has knowledge and capacity to appreciate the dangers because of careful instruction, unusual experience, or precocious intellect, shall we say that he is entitled to civil damages because of the violation of a- statute not made for his benefit? Shall we give one having capacity to avoid danger the benefit of inferences from a law that has been made in the interest of those not having that capacity? There is not a word in the statute itself which says civil liability shall exist because of failure to observe the mere age fixed. The statute indicates that protection from a generally presumed want of capacity in those under the age is the end it seeks. Therefore it is not violated in a sense to bring civil damages unless the employer has actually taken into his service one that he must reasonably know may be injured by reason of his own boyish inclinations. Though a boy may be a few days under fourteen years, it may be shown that he has been so well instructed and experienced as to have even more appreciation of danger tlian one over that age. The principles enunciated in Bare v. Coal Company, 61 W. Va. 28, are in point here.

Let us assume that an employer has knowledge of the fact that a boy has unusual capacity and appreciation of danger— that he is beyond the class of his age. If the employer hires the boy and puts him to work, he.unquestionably subjects himself to conviction for a misdemeanor. The statute so subjects him *412 on the mere age of the boy. But it does not subject him to liability for damages. It is silent in that regard. The common law must do that. The common law permits the employer to prove that the boy was folly instructed and was capable of protecting himself from dangers and that it was his own fault that he did not. The common law allows the defense of contributory negligence if facts are shown whereby it appears that under the law such negligence is attributable to the boy. If he has the sense to avoid dangers, the unlawful employment cannot hurt him in this regard, if he uses that sense. So we say that if the contributory negligence is not of that order against which the statute itself provides, is not of that kind which must be anticipated as a probable consequence of a violation of the statute, but comes from one who is shown to have the capacity to refrain from contributing to his own injury, it is an available defense. The employer is entitled to this defense if he can show that the boy contributing to the injury had extraordinary wisdom and full appreciation of the dangers.

In most eases, it is for the jury to say whether the boy contributed to his injury by the immaturity, indiscretion and heedlessness belonging to his age, which contributing to his injury the employer should anticipate as a natural consequence of unlawfully employing him, or 'whether he possessed such unusual capacity and appreciation of danger, or so wilfully contributed to his own injury, as to have done that which was hot an anticipated consequence of the unlawful employment.

Some of the decisions hold that under no. circumstances can contributory negligence avail in a case like the one at hand. But the weight of authority is the other way, and, to our minds, consistent with legal principles. The statute does not- in .words abrogate the defense. A civil action does not get its force from that statute. It only looks to the violation of the statute for evidence to support the action. Why shall not common law principles apply? Bishop on Non-contract law, section 140, and smpra; 20 Am. & Eng. Enc. Law 151; Watson on Personal Injuries, section 267;’ Queen v. Dayton Coal & Iron Co., 95 Tenn. 458; Rolin v. Tobacco Co., 114 N. C. 300; Sterling v. Union Carbide Co., 142 Mich. 284; and other cases.

Though the boy may have misrepresented his age, still he may recover if he makes a case. He is not precluded from the action *413 because lie lias been a party to the unlawful employment. Tbe inhibition is upon the employer. Again we' say, if his failure to observe the law causes injury, he may be made to respond in damages. Braasch v. Michigan Stove Co., 153 Mich. 652.

The employer must ascertain the age of the boy. He must not be negligent in this particular. Unless he actually knows the age so that he may safely rely on the fact before a jury, he must do what the statute directs — he must secure the affidavit of the parent or guardian. The statute requires him to get this affidavit “in all cases of doubt.” If there is not certainty there must be doubt. If he does not actually know the age so that he may safely rely on the knowledge he has obtained in that regard, he is only uncertainly informed and it is a case of doubt. We think the statute virtually says that the employer must clear up all 'uncertainty that exists by securing the affidavit. Only that affidavit or absolute proof that the boy is over fourteen years will protect him. He “knowingly” violates the statute when he does not settle all doubt in advance of the employment. Representations, appearances, and good faith cannot take the place of the affidavit or unfailing proof which the statute requires. The . purpose of the act, and the very spirit 'which it discloses through its words, sanction this construction.

How, when we view the case in the light of the principles announced, we observe the verdict and judgment to be fully justified. The pleadings and evidence warrant the recovery of damages for an injury caused by the act of the defendant in unlawfully employing plaintiff in a coal mine. That injury was the loss of a leg, for which the jury awarded $1500. There is' evidence supporting a finding that the plaintiff 'was under the age of fourteen years, and that the injury was a natural and probable consequence of his unlawful employment. The happening by which the injury came to plaintiff was one which the employer must have reasonably anticipated would follow the employment of a person so immature. The evidence does, not take the boy out of the class for the benefit of which the statute was enacted. It does not raise his capacity over that generally presumed. Ho affidavit of the boy’s age- was sought or furnished. It is plainly shown that the defendant’s agent even doubted the boys statement as to his age. Defendant cannot, as it undertakes to do, rely on evidence of the boy’s mis *414 statements and of what its agent believed from his appearance. There is no error in the giving and refusing 'of instructions to the jury. Those given presented the ease as favorably for defendant as could properly have been done. Those refused were not warranted in a proper view of the case. The judgment in plaintiffs behalf is founded upon no error. It will be affi'rmed.

Affirmed.