It was admitted on the hearing that the plaintiff, at the time he was injured, was not serving in the capacity of apprentice, and this being true, it is established by the verdict that plaintiff has been injured by the negligence of defendant company when he was at their factory as an employee, contrary to the provisions of our statute law (Pell’s Revisal, sec. 1981b), and that recovery has been denied on the ground of contributory negligence.
It is recognized with us that the defense of contributory negligence, in proper instances, may be available in these cases, but it is also clearly held that the presumption is against it, and that where a minor is *465injured wben serving as an employee contrary to tbe provisions of tbe statute) tbe court should instruct tbe jury, in tbis or some equivalent terms, that tbe evidence should be considered and tbe issue determined in view of such presumption. Pettit v. R. R., 156 N. C., 119-127; Leathers v. Tobacco Co., 144 N. C., 330; Rolin v. Tobacco Co., 141 N. C., 300.
In Leathers' case, supra, it was directly held: “That, under tbe age prohibited by tbe statute, tbe presumption is that tbe child injured while working in a factory or manufacturing establishment is incapable of contributory negligence, subject to be overcome by evidence in rebuttal under proper instructions from tbe court.” And in Rolin’s case, on tbis subject: “A child under 12 years of age is presumed to be incapable of so understanding and appreciating dangers from tbe negligent act, or conditions produced by others, as to make him guilty of contributory negligence. Contributory negligence on tbe part of a child is to be measured by bis age and bis ability to discern and appreciate tbe circumstances of danger. He is not chargeable with tbe same degree of care as an experienced adult, but is only required to exercise such prudence as one of bis age may be expected to possess; and tbis is usually, if not always, wben tbe child is not wholly irresponsible, a question of fact-for tbe jury.”
And in tbe case of Pettit v. R. R., supra, Associate Justice Allen gives a full and careful synopsis of several decisions of tbe Court on tbe subject, including Starnes v. Mfg. Co., 147 N. C., 563, and others, and closes with tbe statement relevant to tbis question: “That in addition to tbe usual presumption against contributory negligence, there is a presumption that tbe child has not tbe capacity to appreciate tbe danger of bis employment, but tbis presumption may be rebutted.”
From a perusal of these decisions it will appear that a presumption against contributory negligence in cases of tbis character is recognized with us as an essential feature of tbe doctrine of contributory negligence, and a charge, therefore, which fails to make any reference to it, but instructs tbe jury just as in cases of adults, should be held for -reversible error.
It is not a mere omission in reference to a “subordinate feature of tbe cause, or some particular phase of the testimony,” but is to be considered as a “substantial defect,” which may be raised by an exception properly entered and requiring that tbe issue be submitted to another jury.
Tbe general position applicable lias been stated in tbe recent case of S. v. Merrick, 171 N. C., 788-795, as follows: “And, further, tbe authorities' are as one in bolding that, both in criminal and civil causes, a judge in bis charge to tbe jury should present every substantial and essential feature of tbe case embraced within tbe issue and arising on tbe evi*466dence, and this without any,special prayer for instructions to that effect. Charged with the duty of seeing that impartial right is administered, it is a requirement naturally incident to the great office he holds, and made imperative with us by statute law. Revisal, 535: 'He shall state in a plain and correct manner the evidence in the case, and explain the law arising thereon,’ and a failure to do so, when properly presented, shall be held for error. When a judge has done this, charged generally on the essential features of the case, if a litigant desires that some subordinate feature of the cause or some particular phase of the testimony shall be more fully explained, he should call the attention of the court to it by xirayers for instructions or other proper procedure; but, as stated, the judge is required to give correct charge concerning it,” citing S. v. Foster, 130 N. C., 666; S. v. Barham, 82 Mo., 67; Carleton v. State, 43 Neb., 373; Simmons v. Davenport, 140 N. C., 407.
For the error indicated, the plaintiff is entitled to a new trial, and it is so ordered.