error in sustaining a demurrer to the evidence on the second count.

that defendant was negligent as charged in this case, and as submitted by the instructions herein, rests upon the plaintiff, and, if plaintiff II. As a preface or foreword I may say has not proven by the preponderance of the evidence that defendant was negligent in the that the case upon the whole does not impress manner so stated, and that such negligence was me as having any real justice or merit in it. the sole cause of plaintiff's alleged injuries, So I find it difficult to approach it equitably. then your verdict must be for the defendant." Some such impression was lately made upon The above statement which but slightly the mind of my learned Associate, Graves, J., and immaterially varies from that made by by the facts in the case of State v. Long, 165 ROY, C., in Division 2, will, we think, bes. W. 748. As the testimony impresses me, found sufficient to make clear the points discussed in the below opinion.

W. E. Knowles, of E. St. Louis, Ill., and Earl M. Pirkey, of St. Louis, for appellant. W. F. Evans and E. T. Miller, both of St. Louis, for respondent.

there is an almost palpable inference derivable from it that the truth lies in the view that plaintiff was hurt while engaged in meddlesome mischief solely.

[3] The discussion here is touching the facts as to the common-law negligence set up in the first count, on which the case was sent to the jury. The plaintiff was hurt on August 19, 1909. She was on that date 14 years, 81⁄2 months, old. She says she had been operating this elevator for some three months. It was operated by two wires (wire ropes, she clearly means), one of which was pulled to ascend and the other to descend. She learned, she says, in a very short time how to operate it.

*

"From that time on," to quote her own testimony, "to the time I was hurt I operated the elevator by those wires at least 100 times. I never before this time sat down on the elevator; that was the first time. * * * I knew there was a crack between the south I edge of the elevator and the second floor. had seen it often as I went up by it. It was light at the time I was operating it."

FARIS, J. (after stating the facts as above). [1, 2] I. Plaintiff complains of the act of the court below in modifying an instruction offered by her, by inserting therein sua sponte, the words, "and that when she was injured she was exercising ordinary care as defined by other instructions," as also (and one objection is the corollary of the other) for that the court gave an instruction at defendant's request, submitting to the jury the theory of plaintiff's contributory negligence. Contributory negligence was not pleaded by defendant. To render it available as an affirmative defense, it must have been pleaded. There is no doubt that the learned trial court fell inadvertently here into an erroneous inconsistency. If the proof of plaintiff showed In her direct examination, as to the twoher contributory negligence to an extent bar-inch space between the edge of the second ring recovery as a matter of law, then such floor and the outer edge of the elevator, she negligence was available to defendant here even though not pleaded. Schlereth v. Railroad, 96 Mo. 514, 10 S. W. 66; Collett v. Kuhlman, 243 Mo. 585, 147 S. W. 965. In such case the defendant's demurrer to the evidence of plaintiff should have been sustained. White v. Railroad, 250 Mo. 476, 157 S. W. 593. A submission to the jury of the issue of plaintiff's contributory negligence when no such defense was made in the answer was clearly erroneous and reversible error, unless we can find from the whole evidence of plaintiff that she herself shows her own contributory negligence to an extent which, as a matter of law, forbids a judgment in her fa

vor.

Keitel v. Railroad, 28 Mo. App. 663; Schultze v. Railroad, 32 Mo. App. 448; State ex rel. v. Hallen, 165 Mo. App. 438, 146 S. W. 1171; White v. Railroad, supra; Collett v. Kuhlman, supra. Manifestly we ought not to reverse a case if there be no case, that is,

if there be no sufficient proof to make a case (section 2082, R. S. 1909; Moore v. Railroad, 176 Mo. 545, 75 S. W. 672), even though defendant, satisfied, as it might well have been, with its victory below, has not appealed. Section 1850, R. S. 1909; Turner v. Anderson, 236 Mo. 523, 139 S. W. 180. We will next, then, examine whether there was

sufficient evidence to make out a case for plaintiff upon the first count of her petition. We lay by for subsequent discussion alleged 169 S.W.-8

says:

"The elevator does not fit close against the second floor. There is a space between them; I could not tell exactly just how wide it was. It looked as though it would be wide enough for my leg to go through without hitting or touching the floor at all."

which we italicize in order to emphasize what The closing words of the above excerpt, we are next to say, bring this case in legal effect on all fours with the facts in the case S. W. 794, where as the court finds and says, of Henry v. Railroad, 141 Mo. App. 351, 125 the 14 year old boy who was hurt knew the size of the aperture through which in revolvtended to draw his legs out of danger, but, ing the turntable his legs must pass, and inneglecting to do so timely, was caught and his leg crushed. Here the plaintiff did not intend to draw her leg out of the way, but, knowing the size of the aperture from hav

ing seen it at least, we infer from her testimony, a hundred times, she merely relied on her belief that her leg could safely pass through this space, and was on this account caught and hurt.

In the Henry Case, supra, at page 357 of 141 Mo. App., at page 796 of 125 S. W., Judge

Ellison, who wrote the opinion of the court,

said:

"The situation thus described, leading plaintiff to his injury, is one that should have reasonably been avoided by a youth of fewer years

and of immensely less experience than he. | the space in the elevator shaft between the Why he did not remain on the ground when edge of the elevator platform and that of the . he quit pushing on the lever is not to be acShe thought it would safely counted for by his youth, for such a boy as he second floor. would know that that was the prudent and pass, or, as she expresses it: natural thing to do, and such as he, in like "It looked as though it would be wide enough situation, must be held by the courts to know for my leg to go through without hitting or the probable consequences. Keeping in mind touching the floor at all.' that we are dealing with one of his age, and his experience also, yet we can conclude but one thing consistent with any degree of reason and that is that he seated himself on the table, intended to draw up his legs when he got to the point of contact, and did not do it. An additional suggestion would seem to bar his recovery. Conceding his youth and lack of judgment to the full of the argument in his behalf, yet he testified that he saw his danger, but thought his legs would not be caught. Then he discovered they would be and began to draw them up, succeeding with one, while the other was caught between the ends of the table and the spur rails. We cannot understand why, if he could get one leg up into safety, he could not have gotten both, since they could have been raised at the same time, either as he sat, or by throwing himself over backwards onto the table. It seems to us that the effect of plaintiff's position approaches the point of judging him as an inanimate body, or if not that extreme, as a body bereft of reason.' I

Likewise in the case of McGee v. Railroad, 214 Mo. 530, 114 S. W. 33, a case wherein the parents of a deceased boy 13 years old were denied recovery on the ground of the contributory negligence of the latter as a matter of law. Discussing the latter case it was said by Lamm, J., who delivered the opinion of the court:

If the deceased boy in the McGee Case, supra, had but lived to testify that he saw the train coming, but believed he could beat it over the road crossing, the latter case would be as strong a case forbidding recovery as is this one. Therefore, as upon this count the verdict of the jury was for the right party, it makes no difference whether the court erred or not in giving to the jury instructions injecting into the case an issue not pleaded. Hurck v. Railroad, 252 Mo. 39, 158 S. W. 581; Trainer v. Mining Co., 243 Mo. 359, 148 S. W. 70, Ann. Cas. 1913C, 949: Quinn v. Railroad, 218 Mo. 545, 118 S. W. 46. We disallow this assignment of error.

ca

There were no provisions in the act creating any express civil liability by reason of violation. By a subsequent section the violation of the act was made a misdemeanor, both in the parent or guardian who permitted such child to be employed in the forbidden occupations, and in the employer who employed such child, and fines were provided to punish both such violators.

III. What we have said in the preceding paragraph applies only to the first count; that which charges common-law negligence. Plaintiff contends that defendant through its stable foreman, Hodgson, violated the provisions of section 1723, R. S. 1909, then in force, but since repealed by the act of 1911 (Laws 1911, p. 132). The applicable part of the above section in force when the injury happened is thus written in the statute: "Sec. 1723. No child under the age of 16 "When an issue of fact is framed and put to years shall be employed * in any a jury on the question of the negligence of a pacity whatever in operating or assisting to minor, the general rule is to so frame the in-operate any passenger or freight elevator." struction as to graduate the degree of care demanded of a child to his age and capacity. That rule requires that a child should be judged as a child, and not as a man. But the rule does not mean that the question is always to be submitted to a jury, Children may be declared as a matter of law non sui juris at certain tender years and with certain infantile judgments. Then, again, they may be declared sui juris as a matter of law when their age, capacity, and the circumstances under which they act are all considered. It may be taken as the most enlightened and accepted doctrine in the case of infants that generally the question of their contributory negligence is one for the jury. But it is not the accepted doctrine that it may not, under given circumstances, be dealt with as a matter of law. If the facts are few and simple, devoid of confusion and complications, and if the danger to be avoided is so apparent as to be within the easy comprehension of a boy of 13 years of age, if that boy is shown to be of bright intelligence and of a judgment training him to caution and care in the matter in hand, we say, all these things being admitted, then there is no reason why the judge on the bench may not, as a matter of law under the facts of the given case, declare there could be no two opinions among reasonable men about the negligence of such a boy measured by the standard of an ordinarily prudent boy. A boy of that age knows, as well as an adult, that a locomotive must follow the rails, and that it cannot run around him or avoid striking him if he is on the track and gets in its way."

If we shall find from the facts that the plaintiff was employed "in operating or assisting to operate" the freight elevator in defendant's barn, then we may inquire from the decided cases, having brought the case within the statute, whether such act of defendant perpetrated through its stable foreman, Hodgson, was: (a) Negligence per se (Steel Car Forge Co. v. Chec, 184 Fed. 868, 107 C. C. A. 192; Scalley v. Garratt, 11 Cal. App. 138, 104 Pac. 325; Casperson v. Michaels, 142 Ky. 314, 134 S. W. 200; Hankins v. Reimers, 86 Neb. 307, 125 N. W. 516; Stehle V. Automatic Machine Co., 225 Pa. 348, 74 Atl. 215, 133 Am. St. Rep. 844; Sharon v. Winnebago Furniture Co., 141 Wis. 185, 124 N. W. 299; Kirschner v. Iron Clad Mfg. Co., 134 App. Div. 144, 118 N. Y. Supp. 823); (b) whether it foreclosed to defendant ordinarily Here in the instant case the plaintiff knew the defense of contributory negligence (there and fully appreciated the danger. She de- was no such plea here however) (Strafford v. liberately hung her leg over the edge of the Republic Iron Co., 238 Ill. 371, 87 N. E. 358, elevator platform, and knowingly experiment- 20 L. R. A. [N. S.] 876, 128 Am. St. Rep. 129; ed to see whether her leg could go through | Marquette Coal Co. v. Dielie, 208 Ill. 116,

a rock. Not of course in the sense that a conviction must first be had, but in the sense that if the facts in the case fall short of being sufficient to make out any criminal liability, they likewise ought to be insufficient to make out any civil liability.

In the case of Fortier v. The Fair, 153 Ill. App. 200, it was held that the fact that a child under 16 years of age was required, in the course of his employment, to ride up and down upon an elevator once or twice a day could not be deemed necessarily and as a matter of law to constitute it an employment dangerous to life and limb within the meaning of a statute prohibiting such employment.

70 N. E. 17; Sullivan v. Hanover Cordage which is denounced in the statute, as upon Co., 222 Pa. 40, 70 Atl. 909; Lenahan v. Pittston Coal Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389); or (c) whether it was merely an act of negligence in the master to go to the jury, leaving open as a defense the plea of the contributory negligence of plaintiff, if any, to be passed on by a jury (Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755; Woolf v. Nauman Co., 128 Iowa, 261, 103 N. W. 785; Smith v. National Coal Co., 135 Ky. 671, 117 S. W. 280; Bromberg v. Evans Laundry Co., 134 Iowa, 38, 111 N. W. 417, 13 Ann. Cas. 33; Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. Rep. 416; Rohn v. Standard Optical Co., 110 App. Div. 501, 96 N. Y. Supp. 1080; Lee v. Sterling Silk Co., 134 App. Div. 123, 118 N. Y. Supp. 852; Berdos v. Tremont Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797; Woods v. Paper Co., 167 Mich. 514, 133 N. W. 482).

If it was negligence per se, if it foreclosed the defense of contributory negligence, or if it was evidence of common-law negligence, it was error to sustain the demurrer of defendant to the second count of plaintiff's petition, provided the facts of the alleged employment as shown by the testimony of plaintiff bring the defendant within the letter of the statute.

[4] But a serious question in limine thrusts itself into the case here, that is: Was there causal connection between plaintiff's employment to answer the telephone and the identical use of the elevator therein, so as to enable us to say she was employed to operate the freight elevator within the purview of this statute? We think not. This is a penal statute, penal as to the parents of plaintiff as well as to Hodgson and the defendant. It is fundamental that penal statutes are to be strictly construed. If Hodgson, or the defendant, or the mother of the minor plaintiff, had been prosecuted for the forbidden misdemeanor of employing the plaintiff to operate a freight elevator, could a conviction be sustained against either one of the three upon the testimony in this record? Did either one or all three of these persons violate this penal statute as to any employment of this girl? If they did not, how can this case fall within the purview of section 1723? Is it not a condition precedent to any actionable liability under this section that there must first be a violation thereof? There is not a word in it as to its violation producing any liability other than the criminal one; if there were, then the civil liability might be independent and not interdependent. If there is a civil liability, therefore, such must arise from an antecedent criminal infraction. It is criminal liability plus civil liability, and by its terms in reason cannot be civil liability minus criminal liability. The civil liability is built upon the misdemeanor in the case, and

While it is true that the holdings are pretty unanimous that if a child within a prohibited age be employed in a forbidden work, the unlawful employment is to be regarded in law as the proximate cause of the injury (Sharon v. Winnebago Furniture Co., supra; Casteel v. Pittsburg, etc., Brick Co., 83 Kan. 533, 112 Pac. 145), and that the finding of such unlawful employment establishes the necessary causal relation between the disobedience of the statute and plaintiff's injury, even though when injured plaintiff was not presently engaged in the duties of the forbidden employment. But in the instant case the employment (granting, as we do, grudgingly, but as in law we must, that any such existed) to answer the telephone was not unlawful. If plaintiff had been employed to operate the elevator, and had been hurt while answering the telephone, the causal relation of the cases last supra would then have been present, according to these cases. These latter cases, however, are the very converse of the instant case; they are so held, and also they hold that an opposite state of facts would not produce civil liability. Casperson v. Michaels, 142 Ky. 314, 134 S. W. 200; Unnewehr Co. v. Standard, etc., Ins. Co., 176 Fed. 16, 99 C. C. A. 490; Steel Car Forge Co. v. Chec, 184 Fed. 868, 107 C. C. A. 192; Norman v. Coal Co., 68 W. Va. loc. cit. 409, 69 S. E. 857, 31 L. R. A. (N. S.) 504; Revis v. Railroad, 147 Ill. App. 116.

In the Casperson Case, supra, at page 317 of 142 Ky., at p. 201 of 134 S. W., it was said:

same

"It is argued that appellant had the right to employ appellee in the laundry, just so she was not put to work at any of the machinery therein used; that as she was injured at a part of the machinery where she was not employed to work, and at a time when she was not actually engaged in work, the case is just the towels, an employment attended by no danger, as if she had been employed to mark and had gone into the machinery room and been injured in the same manner; that if that be true her right to recover does not depend sidered from a standpoint entirely independent upon the statute, and her case should be conof the statute; and, when so considered, her own evidence shows that the danger of placing her hand on or near the drum was so obvious and apparent that even a child of much tenderer years ought to have known and appreciated the danger. While we appreciate fully the force

"The true question to be determined in an action based upon a failure to obey a statute like the one under consideration is: Did the unlawful employment cause the injury? The trial of the case must be guided by this question. If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law. But if the injury is "No child under the age of sixteen years shall one that happened by causes independent of be employed * in any capacity whatthe violation of the statute, it is not actionable ever in operating or assisting to operate any on the basis of that violation. If an interven- passenger or freight elevator." ing 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 the proximate cause.'