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direction or request,” the said William Rhodes went to the front of the car, and, seizing a round of the ladder attached thereto, commenced pulling. Other persons were behind the car, and on each side, pushing, and he alone in front pulling, and entirely out of sight of all the agents and employes of the defendant, and of the other persons engaged in moving the car. As the said William Rhodes was walking backward, and pulling with all his strength, he stumbled over a stone which was lying between the rails of said side track, and which the employes of the road were in the habit of using for the purpose of “scotching" cars when moved as this was being moved. * Being quite exhausted by his exertion in pulling, he was unable to recover himself, and those behind and on each side, not seeing or knowing of his perilous condition, continuing to shove and push said car," he was run over and killed. The agents and employes of defendant“ were wanting in care and diligence in asking the said William Rhodes, a youth of tender years, to assist them in moving said car.” Also, “in permitting him to assist them." Also, “they were careless and negligent in having said stone between the rails of said side track. Also, “they were grossly negligent and carelessly unmindful and indifferent of human life in putting a youth of such tender years in a position of itself so dangerous, which was, in this instance, greatly enchanced by the fact that he could not be seen by others engaged in moving said car; and there was no agent, employe, or other person engaged in moving or superintending the moving of said car, placed by. said company or its employes in front of said car, or in such position as to keep a lookout ahead to see on the track, and give such notice or warning as might become necessary to prevent accident or injury to any one." To this declaration the defendant demurred, upon the ground that the same was not sufficient in law to authorize a recovery by the plaintiff. This demurrer was sustained by the court, and the plaintiff excepted, and brings the case here for review.

The main question in this case is whether one who is alleged to have been but 13 years of age had sufficient discretion as prima facie to know what he was doing, and be responsible therefor. It may be laid down as a gen- minor em. eral rule that a person who assumes to assist the ploye. servant of another, without being authorized so to do by the master, and while thus acting becomes injured, has no right of action against the master for his injury, upon the ground that he is a mere volunteer. But where one who was the age of 13 years assumed upon his part to assist the servants of a railroad company in moving a loaded car, and while thus employed was injured to such an extent that he

Discretion of

died, and such service on his part was without the knowledge or consent of the railroad company, and without any authority from the company so to act, would the company, under such circumstances, be liable for an injury to such person? If the person were an adult, there would clearly be no liability on the part of the company. But, as the declaration alleges that the person thus injured was of the tender age of 13 years, whether the company would be liable or not would depend upon the amount of discretion and knowledge which such infant had at the time. Our Code, $ 4294, declares that a "per. son shall be considered of sound mind who is neither an idiot, a lunatic, or afflicted by insanity, or who hath arrived at the age of fourteen years, or before that age, if such person knew the distinction between good and evil." Section 4295 declares that“ an infant under the age of ten years, whose tender age renders it improbable that he or she should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity deliberately to have committed the offense, shall not be considered or found guilty of any crime or misdemeanor.' Our Code further declares a person under the age of 14 years incompetent to make a will, but, if of that age, he is competent as by the common law. An infant 14 years of age may act as an executor to a will, if the testator so direct. It is insisted by counsel for the defendant in error that the court should declare as a matter of law that a person 13 years of age had sufficient discretion and knowledge to render him responsible for his acts. We do not think that the court is authorized so to declare; but, in view of our Code, the court could declare that an infant who had arrived at the age of 14 years prima facie had sufficient capacity and knowledge of right and wrong to make him responsible for his conduct and acts; that an infant under the age of 10 years prima facie did not have such discretion and capacity, and could not he charged with a knowledge of right and wrong so as to make him responsible for his acts or conduct, unless it was clearly shown he had such capacity and discretion. Between the ages of 10 and 14 years, if a person knew the distinction between good and evil in the particular instances, he would be liable for his acts and conduct. But in a case like the present, where the infant is under the age of 14, before he could be held responsible for his acts and conduct it would have to be shown by proof that he knew the distinction between good and evil, and had capacity to comprehend the danger, and avoid the same. The court cannot of itself determine these questions so as to fix the responsibility upon him for his act. They would be for determination by the jury, upon the proofs submitted on the trial of the case, and we are of the opinion

that if the son of the plaintiff in error (who had not arrived at the age of 14 years) knew, or had sufficient capacity to know, the distinction between good and evil in the particular instance, and to protect himself, he would be responsible for his own conduct. And, if this should turn out to be the case, then, if the plaintiff's son voluntarily, at the request of defendant's servants, assisted said servants in moving the car, and while thus engaged placed himself in a perilous condition, in consequence of which he was killed, there could be no recovery. But, if he did not have sufficient capacity, there might be a recovery, should the jury believe the company was negligent. It is apparent from this declaration that the plaintiff's son, who was killed, was but a mere volunteer, and what he did was voluntary on his part, and without knowledge or consent of the defendant in error. Therefore, if he did have sufficient capacity, his father conld not recover for his homicide. This will depend upon the facts submitted in proof to the jury.

We think what we have said on the subject of the discretion of the son is fully sustained by the case of Nagle v. Allegheny Val. R. Co., 88 Pa. St. 35, in which it is decided that an infant of the age of 14 years is presumed to have sufficient capacity to be sensible of danger, and have power to avoid it, and that this presumption will stand until overthrown by clear proof of the absence of such discretion as is usual with infants of that age. The court may further decide as a question of law that prima facie an infant under the age of 10 years has not sufficient capacity to be sensible of danger, or have the power to avoid it, and this presumption will continue until overcome by proof showing the contrary. Whether, therefore, in the present case, the plaintiff's son had sufficient capacity to be sensible of danger, and to have the power to avoid it, is a question for the jury; he being of that age at which our Code says that, if he knew the distinction between good and evil, he would be responsible, other. wise he would not be.

The plaintiff's son was not a fellow-servant with the ser: vants of the defendant in error. To be the servant of another, there must be some contract, or some act on the part of the master, which recognizes the

person as a servant, either express or implied. It is laid down as a general rule that a person who assists the servant of another in an emergency cannot recover from the master on account of the negligence or misconduct of the servant. Such servant cannot, by his officious conduct, impose a greater duty on the master than that which the latter owes to his hired servant at common law, and it is immateri.

41 A. & E. R. Cas.-20

Fellow-ser vants - Volunteer.

al whether the injury occurred while assisting the servant gratuitously or at the request of the latter. See Degg v. Midland R. Co., i Hurl & N. 773; Osborne v. Knox & L. R. Co., 68 Me. 49; 2 Thomp. Neg. 1045. In Holmes v. NorthEastern R. Co., L. R. 4 Exch. 254, (affirmed in exchequer chamber, L. R.6 Exch. 123,) the plaintiff was a person entitled to the delivery of a wagon-load of coals from the defendant, a railway company. The usual mode of delivery was impossible on account of the crowded state of the station.

He was hence allowed by the company's station master to go to another place, where the wagon was to get the coals; and while so doing he fell through a hole, owing to the negligent keeping of the company's premises. The court held that he was engaged, with the consent of the company, in a transaction of interest to both parties, which prevented him from being there as a volunteer, and entitled him to have the company's premises kept in a reasonably safe condition, and he was allowed to recover. So, also, in the case of Wright v. London '& N. W.R. Co., 1 Q. B. Div. 252. In this case, the Case of Holmes was cited by Lord COLERIDGE, C. J., with approval. The case referred to places the liability of the company upon the ground that the plaintiff was not a mere volunteer, but was there on the company's premises for the purpose of attending to his own business, which was likewise connected with the business of the company. The plaintiff and the defendant seem to have had an interest in common in the business to be transacted. But in the present case there was no business in common between the plaintiff's son and the defendant. He was not there even as a licensee by the company. The cases which have been referred to do not sustain the contention of the plaintiff in error. We think, however, that the court erred in sustaining the demurrer to the plaintiff's declaration for the reasons we have already stated, and the judgment is reversed.

Minor Employe-Exposure to Danger-Loading Lumber Car.-For two persons of competent strength to load an open flat-car with lumber of uniform length, breadth, and thickness, by piling the same in parallel tiers one after another, is to do work which common laborers can perform without more hazard to their own security than appertains to ordinary manual labor. It requires no special skill or antecedent training, and therefore a youth 17 years of age, who engages in it as part of the business for which he was employed by the railroad company, is not unduly exposed by reason merely of being left uninstructed in the mode of doing the work, and unwarned beforehand of any danger attending it. The plaintiff having been injured by some of the lumber falling upon him, and there being no evidence that the doing of such work properly was dangerous, or that he did not know how to do it properly, or that he was wanting in capacity to know, and nothing being alleged in the declaration as to any defect in the car or any of the appliances, the court was correct in granting a nonsuit. Sims v. East & West R. Co. of Ala., Ga. Sup. Ct., Dec. 16, 1889.

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Same-Injuries-Use of Improper Language by Counsel in Argument.Where a minor who was employed by the defendant as a coal-heaver, was injured while coupling cars, and claims that he was placed on duty as a switchman, a position for which he was incompetent, the plaintiff's counsel should not be allowed in his closing argument to say that it is contrary to public policy for indiscreet minors like the plaintiff, who had no means of support outside of his labor, to be employed in dangerous positions, and that “ such a policy is calculated to increase pauperism, and means that you and I and the country have them to support. Gulf C. & S. F. R. Co. 7. Jones, Tex. Sup. Ct., Mar. 5, 1889.

Employment of inexperienced Person of Full Age.—Where the deceased at the time of the accident was nearly 22 years of age, and it did not appear that he was not physically and mentally qualified to learn and perform the duties of a brakeman, the mere fact that he was inexperienced is not sufficient to establish negligence in employing him. Gorman v. Minneapolis & St. L. R. Co., Iowa Sup. Ct., Oct. 16, 1889.

CARROLL v. EAST TENNESSEE, VIRGINIA & GEORGIA Ry. Co. East TENNESSEE, VIRGINIA & GEORGIA Ry. Co. v. CARROLL.

(Georgia Supreme Court, September 25, 1889.) Master and Servant-Contributory Negligence-Failure to Keep Engineer Awake-Instructions.—Where the want of care and diligence imputed to the plaintiff, who was a fireman upon a locomotive, relates to his failure to keep the engineer awake, or take other measures for his own safety, and the imputed negligence reaches back some hours, a paragraph of the court's charge to the jury, which might be understood by them as restricting the inquiry to a much shorter period, is erroneous; and for the court, in the same paragraph, to specify certain conduct of the fireman, and instruct upon it in a way to imply that the same would not be negligence, is additional error, the question whether such conduct would or would not be negligence being for the jury.

Same-Duty of Fireman.—The measure of risk which a fireman ought to incur by remaining upon a locomotive, and assisting a sleeping engineer to run the train, is that only which his duty and obligations to the company, under all the circumstances, impose upon him. If he subjects himself to any greater risk, and is thereby injured, he is not without fault, and cannot recover.

Same-Evidence-Admissibility of Reports to General Manager.—Reports to the general manager of the company touching the facts, circumstances, and results of a railway accident, and who was to blame therefor, made several days after the event, by the superintendent and the conductor, supported by the affidavit of the latter and of several other employes, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring the same, or under special orders for the particular occasion; no question of notice to the company being involved in the controversy.

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