APPENDIX I CANTON COTTON MILLS vs. EDWARDS (Supreme Court of Georgia. June 10, 1904.) Infants—Capacity—Injury to Employee—Petition

Wylie Edwards, by his next friend, brought suit against the Canton Cotton Mills for personal injuries, alleging that on February 10, 1902, the plaintiff, being a child ten years old, was employed to sweep floors and make bands for the spinning-room. That, in order to get water to drink, it was necessary for him to pass the entire length of defendant’s factory, filled with swiftly moving machinery, and that after obtaining a drink of water, and while returning, it was necessary to pass a machine called a “finisher.” That he stopped to observe the lap of cotton as it came out of the machine onto the roll. Boylike, and with no knowledge of the danger, he laid his hand on the roll, as he had seen the man in charge of the machine do, when, in some way unknown to the plaintiff, his hand was caught and drawn between the rolls, to his great damage. That plaintiff was not aware of the dangerous character of the machine, nor had he been warned of its danger. That he was so young as not to be aware of the dangerous character of defendant’s machinery; nor was he capable of appreciating and guarding against such dangers; nor was he capable of understanding, remembering and acting upon warnings that might have been given by defendant; and of all this defendant had full knowledge. That defendant was negligent, in that it retained in its employment, and required to be in its mills among its machinery, a child too young to realize and guard against a danger, and too young to appreciate and act upon any warning, and too young to work in such a place. That it was negligent in failing to warn him, and in failing so to guard its machinery as to make the factory safe for him to work in. That the defendant was negligent in not protecting him from dangers incident to work about a machine of whose dangers he knew nothing, and which, by reason of his youth and inexperience, he was incapable of guarding against.

The defendant demurred on the grounds that the petition set out no cause of action; that the injury was the direct result of plaintiff’s own negligence; that it was not negligence in defendant not to warn plaintiff, nor was it negligence to employ a child of the age of plaintiff, nor was it bound to inform him as to the dangerous machines in and about the mills on which plaintiff was not expected to work.

The court overruled the demurrer, and the company excepted.

Lamar, J. The age of majority and the age under which there can be no criminal responsibility have been arbitrarily declared by statute. But neither nature nor the courts have fixed any definite age at which children attain the capacity to work. In some children the mind outruns the body, and in others the body outgrows the mind. Some are weak and undeveloped at the age of fourteen, and others are strong and vigorous at ten. Some at an early age can hunt, drive, ride, swim and work in many occupations with ordinary safety, while others of the same age, with even greater physical strength, by reason of want of experience, would be unable to engage in the same sports or labors without serious risk. The question of capacity, therefore, is not to be determined as a matter of law by the courts, but as a matter of fact by the jury; applying the principle involved in Civ. Code 1895, § 2901, which declares that “due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.” The petition alleged that the plaintiff was ten years old, ignorant of the character of the machine and of the danger of working therewith as he had seen others do; that he had not been warned; that he was incapable of appreciating, remembering or acting upon any warnings that might have been given him; and that the company was not only negligent in failing to warn plaintiff, but also in failing to guard its machinery so as to make the factory safe as a place in which to work. These allegations made it proper to overrule the demurrer. Compare Evans vs. Josephine Mills, 119 Ga. 448, 46 S. E. 674.

Judgment affirmed. All the justices concurring.