after stating the case: The question presented by the record has, within a few years, been considered by this Court in six cases: Ward v. Odell, 126 N. C., 948; Fitzgerald v. Furniture Co., 131 N. C., 645; Hendrix v. Cotton Mills, 138 N. C., 170; Rolin v. Tobacco Co., 141 N. C., 310; Leathers v. Tobacco Co., 144 N. C., 342, and Starnes v. Manufacturing Co., 147 N. C., 563.
The last three were against manufacturing establishments, and were based on the statute (ch. 473, Laws 1903, now Eev., see. 1981a), which provides: “That from and after 1 January, 1908, no child under twelve years of age shall be em-. ployed in any factory or manufacturing establishment in this State”; and we deduce therefrom the following principles:
(1) That the statute is constitutional.
(2) That it applies to employment in factories and manufacturing establishments, and to no other.
(3) That the employment of a child under twelve years of age in a factory or manufacturing establishment is negligence per se.
(4) That such negligence is proximate, if the child is injured as the result of his employment.
(5) That there is no assumption of risk by the child.
*128(6) That the negligence of the parent, if any, in permitting the employment, cannot be imputed to the child.
(7) That in addition to the usual presumption against contributory negligence, there is a presumption that the child has not the capacity to appreciate the dangers of his employment.
(8) That this presumption may be rebutted.
These decisions are not, however, authoritative in this case, because the employment of the intestate is not within the statute, and is not forbidden by it, and we are not at liberty to extend the statute to include employments not within its letter or spirit.
In the Hendrix case, the boy was employed to work at the complicated machinery of a cotton mill, but as he was twelve years of age, the case was decided on the principles of common law, and not on the statute, and it was held that there was a failure of proof as to negligence and proximate cause.
In the Odell and Fitzgerald cases there was evidence of the negligence of the employer, outside of the dangerous character of the employment, in that in each there was evidence of a failure to instruct the child, and in both the question discussed was the correctness of instructions on contributory negligence.
The. opinion in the Fitzgerald case was written by Qhief Justice Clark. He quotes with approval the following language from Thompson on Negligence: “The law puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all; the master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance, and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult.”
He also refers to the statutes from many of the States, and from Europe, giving the ages at which children may be worked in factories, and concludes: “With this consensus of opinion in nearly the entire civilized world, it might be that it would not have been error if the judge had held that it was negli*129gence per se to put a child of the tender age of nine years to work on a dangerous machine which he had never seen before, without any instructions or warning, and to leave him there by himself without stopping the machine. But, however that may be, it certainly was not error to leave the question of negligence to the jury with the charge given in connection therewith, which was very favorable to the defendant.”
Accepting this as a correct statement of the law, we must abide by it, and can permit a recovery of damages for no reason except that a child has been injured. We may have pity and may be inclined to heed “the sob of the child in its helplessness,” but we must accept the law, as we understand it, as our guide in determining the rights of litigants, bearing in mind the admonition of Judge Daniel: “The courts should not be wiser than the law.”
The question is not presented in this record, and therefore it is not necessary to decide it; but we might go further than the Fitzgerald, case, and hold that when the employment is dangerous, it is not necessary to prove a failure upon the part of the employer to instruct, and still there would be no evidence of actionable negligence in this case, because there is nothing in the evidence to show that the intestate was on duty, or was performing a duty for the defendant. The evidence is vague and unsatisfactory. No witness swears on what day the intestate was killed, but we assume it was on a Sunday in April, 1907. No one swears he was killed by a train of the defendant, but we accept this as proven, although it would have been easy to show signs of blood on the rails or track, which was not done. The only statement as to how the intestate was injured is contained in the answer of the defendant, which was not in evidence: “That the said Joe Pettit at the time he received the injuries alleged in the complaint was rendering no service to the defendant, and was where he had no right to be. That said Pettit, of his own will and accord, and against the warning of his companions, attempted to get on a passing flat ear, missed his catch, fell, and the wheel of the car passed over and mashed his feet, without any fault of the defendant.”
*130No witness says tbat tbe intestate was on duty tbe day be was killed, 01* tbat be was performing a duty for tbe defendant at tbe time of bis death.
These facts were not peculiarly within tbe knowledge of tbe defendant, as bis mother and stepfather knew whether or not be was on duty tbat day. Both knew be was employed by tbe defendant, and tbe mother received bis wages.
Tbe evidence, accepting it as true, shows tbat be was a messenger boy to carry messages, and tbat be bad to cross tbe tracks; but there is no suggestion tbat be bad to ride passing freight trains to perform these duties.
We repeat here tbe evidence of tbe witness Batts, who is tbe only witness who testifies to any fact connected with the killing:
Q. What is your name? A. J. W. Batts.
Q. Where do you reside? A. South Rocky Mount.
Q. What is your employment? A. Train- engineer. I was fireman at tbe time of this accident.
Q. Fireman in April, 1907? A. Yes.
Q. In whose service? A. Atlantic Coast Line.
Q. Where were you on tbe day tbat Joe Pettit was killed? A. I was on tbe yard; bad been out at work and just started home.
Q. At what time? A. Between 11 and 12.
Q. Did you see Joe Pettit tbat day? A. Once; I saw him on tbe corner of the car.
Q. State what position be occupied on tbe car? A. He was standing on tbe steps and bolding to tbe lower round.
Q. What kind of a car? A. Box car.
Q. In motion? A. Yes, moving.
Q. Did you see Pettit again this day? A. Yes, after be was run over.
Q. What attracted your attention? A. I beard some one scream out.
Q. Where did you find Pettit? A. He was lying on tbe track.
Q. What was bis condition? A. One leg off.
*131Q. Do you know to wbat extent tbe tracks a.re used for tbe making up of trains and tbe classification of cars of tbe Coast Line? A. Yes.
Q. Wbat wag it; go abead and state tO' tbe jury for wbat purpose they were used? A. They were put there for incoming trains and for making up trains going out.
Q. How frequently are engines and trains passing back and forth through tbe yard? A. Most all tbe time.
Tbe clear inference from this evidence is that tbe intestate, acting outside of tbe line of duty, jumped on a passing train, fell off, and was injured. I
If we confined tbe plaintiff strictly to tbe allegations of tbe complaint, tbe case would be stronger against her, as no one could urge that there is any evidence that tbe intestate was knocked off tbe car by coming in contact with a car on another track.
Tbe plaintiff was not inadvertent to tbe necessity of proving that tbe intestate was on duty, because be alleges that tbe intestate was in tbe discharge of bis duty, and was engaged in delivering a telegram, but be offered no evidence to sustain these allegations.
After a careful consideration of tbe case, we conclude that bis Honor committed no error in ordering a nonsuit.
No error.