ANDERSON, J.
Section 1035 of the Code of 1907 says: “No woman or boy under the age of fourteen years, shall be employed to work or labor in or about any mine in this state.” This statute was intended to protect women and children of a tender age from incurring the hazard and danger incident to the operation of mines by imperatively preventing the employment of same, and requires the employer to see and know that those whom they employ are not within the prohibited class, and it should be liberally construed so as to effectuate the humane intent of the Legislature. As was said by the New York court, in the case of Lee v. Sterling Mfg. Co., 47 Misc. Rep. 182, 93 N. Y. Supp. 560: “This is a statute Avhich makes an epoch in the progress of humanity, and the courts should not get in its way or whittle it down, as courts have done in the past.” It is not a question of whether or not the employer thought the child was over the prohibited age, but whether or not he was. Nor is it necessary that injury must result as the proximate cause of some act or omission of the minor in the discharge of the duty assigned him, but the right of action arises if the injury resulted from the employment and was incident [193]*193to any of the risks or clangers in and about the business. Of course, there would be no causal connection if the boy got sick or was injured in some way foreign to the master’s work or business, although in or near the mine; but if the injuries are produced while the boy is at the forbidden place — that is, in or about a mine by some cause not foreign to the master’s mine or business — there is such a causal connection with the forbidden employment as would render the master liable. The weight of authority also is that false representations by the minor or any one else, as to his age, would not estop him from a recovery for injuries sustained. Neither can the defense of assumption of risk or contributory negligence be invoked by the master as a defense to injuries sustained as a result of the wrongful employment. This statute was evidently borrowed from some of the other states and was enacted after it had there received a well-known interpretation, and we find that the holding in nearly all of the states, wherein statutes similar to this one exists, and which have been interpreted, is in full accord with the foregoing conclusion. — Thompson on Negligence, vol. 1, par. 10; Queen v. Dayton Coal Co., 95 Tenn. 158, 32 S. W. 160, 30 L. R. A. 83, 19 Am. St. Rep. 935; American Car Co. v. Armentraut, 211 Ill. 509, 73 N. E. 766; Rolin v. Reynolds Tobacco Co., Ill N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 335, 8 Ann. Cas. 638; Starnes v. Albion Mfg. Co., 117 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S. ) 606, 15 Ann. Cas. 170; Swift Co. v. Rennard, 119 Ill. App. 173; Strafford v. Republic Go., 238 Ill. 371, 87 N. E. 358, 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129; Braasch v. Michigan Stove Co., 153 Mich. 652, 118 N. W. 366, 20 L. R. A. (N. S.) 500; Nairn v. National Biscuit Co., 120 Mo. App. 111, 96 S. W. 679; Stehle v. Jeager Co., 220 Pa. 617, 69 Atl. 1116, 11 Ann. [194]*194Cas 122; Lenahan v. Pittston Coal Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; Sullivan v. Hanover Co. 222 Pa. 40, 70 Atl. 909. We do not mean to hold that a representation by the parent that the boy was over age would not estop said parent in an action for violating the statute, but do hold that the boy is not estopped from a recovery, either by his own misrepresentations or those of his parents, as to his age. These representations, either by the boy or the parent, are evidential facts to be considered in determining the true age of the boy, but not as an estoppel in an action by the boy or his legal representative as distinguished from one by the parent. The first part of the oral charge excepted to by the appellant conforms to the foregoing opinion and was not error, as it hypothesizes that the injuries must have been sustained by reason of the alleged unlawful employment.
The New York court, while in line with other authorities that assumption of risk and contributory negligence is not available against a violation of this statute, holds, in effect, that the employer is not liable unless he violates the statute knowingly or negligently, but we follow the other cases which make him liable for violating it, whether done negligently or not. In other words, he must, in effect, be an insurer of the boy’s age when he employs him. — American Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Swift v. Rennard, supra; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389. The statute in question must not be confused with the “child labor” law regulating the employment of children in a mill, factory, or manufacturing establishment, and Avhich is contained in chapter 184 of the Criminal Code of 1907, as there is a provision there for requiring the [195]*195affidavit of the parent and also penalizing a violation knowingly. The statute in hand has no such provision or conditions, but peremptorily prohibits the employment of a woman or boy under 14 years of age from being- employed in or about a mine. The Alabama cases cited by appellant, to the effect that the defendant would not be guilty for violating the law for selling liquor to minors or persons of known intemperate habits, are not analogous to the present case, as the court there held that the intent was essential to the crime. Here we are not dealing with a criminal statute, but one which prohibits the employment of a certain class, and the employer must ascertain at his peril whether the child is of the required age. The case of Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338, is not opposed to the present holding and involved a different statute.
There ^ was no reversible error in the second part of the oral charge excepted to by the defendant. Whether the court did or did not correctly state the rule as to the contributory negligence of infants under 14 years of age, generally speaking, error, if any, could be of no avail in the instant case as the court could, as matter of law, have instructed that' the plaintiff was not and could not be guilty of contributory negligence.— Lenahan v. Pittston, 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885, and authorities supra. The case of Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389, presents a well-considered opinion by the Indiana court, wherein many authorities are cited in support of the ■holding that: “The employer of a child in violation of a specific statute cannot screen itself from liability for an injury sustained by the child in its service because the injury was occasioned through such negli[196]*196gence, imprudence, or childish traits as gave rise to the statute. It follows, therefore, that if appellee was employed and injured, as alleged in the second paragraph of complaint, under the law he cannot be chargeable either with having assumed any risks of employment or with negligence contributing to his injury.” It may be true that the defendant had pleas of contributory negligence and to which demurrers should have been sustained, but, notwithstanding issue was joined on said pleas, they were not proven and could have been affirmatively charged out. They all charge that the plaintiff was “guilty” of contributory negligence, when, as matter of law, he was not and could not be “guilty” of contributory negligence as charged in said pleas. — Rasco v. Jefferson,
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ANDERSON, J.
Section 1035 of the Code of 1907 says: “No woman or boy under the age of fourteen years, shall be employed to work or labor in or about any mine in this state.” This statute was intended to protect women and children of a tender age from incurring the hazard and danger incident to the operation of mines by imperatively preventing the employment of same, and requires the employer to see and know that those whom they employ are not within the prohibited class, and it should be liberally construed so as to effectuate the humane intent of the Legislature. As was said by the New York court, in the case of Lee v. Sterling Mfg. Co., 47 Misc. Rep. 182, 93 N. Y. Supp. 560: “This is a statute Avhich makes an epoch in the progress of humanity, and the courts should not get in its way or whittle it down, as courts have done in the past.” It is not a question of whether or not the employer thought the child was over the prohibited age, but whether or not he was. Nor is it necessary that injury must result as the proximate cause of some act or omission of the minor in the discharge of the duty assigned him, but the right of action arises if the injury resulted from the employment and was incident [193]*193to any of the risks or clangers in and about the business. Of course, there would be no causal connection if the boy got sick or was injured in some way foreign to the master’s work or business, although in or near the mine; but if the injuries are produced while the boy is at the forbidden place — that is, in or about a mine by some cause not foreign to the master’s mine or business — there is such a causal connection with the forbidden employment as would render the master liable. The weight of authority also is that false representations by the minor or any one else, as to his age, would not estop him from a recovery for injuries sustained. Neither can the defense of assumption of risk or contributory negligence be invoked by the master as a defense to injuries sustained as a result of the wrongful employment. This statute was evidently borrowed from some of the other states and was enacted after it had there received a well-known interpretation, and we find that the holding in nearly all of the states, wherein statutes similar to this one exists, and which have been interpreted, is in full accord with the foregoing conclusion. — Thompson on Negligence, vol. 1, par. 10; Queen v. Dayton Coal Co., 95 Tenn. 158, 32 S. W. 160, 30 L. R. A. 83, 19 Am. St. Rep. 935; American Car Co. v. Armentraut, 211 Ill. 509, 73 N. E. 766; Rolin v. Reynolds Tobacco Co., Ill N. C. 300, 53 S. E. 891, 7 L. R. A. (N. S.) 335, 8 Ann. Cas. 638; Starnes v. Albion Mfg. Co., 117 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S. ) 606, 15 Ann. Cas. 170; Swift Co. v. Rennard, 119 Ill. App. 173; Strafford v. Republic Go., 238 Ill. 371, 87 N. E. 358, 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129; Braasch v. Michigan Stove Co., 153 Mich. 652, 118 N. W. 366, 20 L. R. A. (N. S.) 500; Nairn v. National Biscuit Co., 120 Mo. App. 111, 96 S. W. 679; Stehle v. Jeager Co., 220 Pa. 617, 69 Atl. 1116, 11 Ann. [194]*194Cas 122; Lenahan v. Pittston Coal Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; Sullivan v. Hanover Co. 222 Pa. 40, 70 Atl. 909. We do not mean to hold that a representation by the parent that the boy was over age would not estop said parent in an action for violating the statute, but do hold that the boy is not estopped from a recovery, either by his own misrepresentations or those of his parents, as to his age. These representations, either by the boy or the parent, are evidential facts to be considered in determining the true age of the boy, but not as an estoppel in an action by the boy or his legal representative as distinguished from one by the parent. The first part of the oral charge excepted to by the appellant conforms to the foregoing opinion and was not error, as it hypothesizes that the injuries must have been sustained by reason of the alleged unlawful employment.
The New York court, while in line with other authorities that assumption of risk and contributory negligence is not available against a violation of this statute, holds, in effect, that the employer is not liable unless he violates the statute knowingly or negligently, but we follow the other cases which make him liable for violating it, whether done negligently or not. In other words, he must, in effect, be an insurer of the boy’s age when he employs him. — American Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Swift v. Rennard, supra; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389. The statute in question must not be confused with the “child labor” law regulating the employment of children in a mill, factory, or manufacturing establishment, and Avhich is contained in chapter 184 of the Criminal Code of 1907, as there is a provision there for requiring the [195]*195affidavit of the parent and also penalizing a violation knowingly. The statute in hand has no such provision or conditions, but peremptorily prohibits the employment of a woman or boy under 14 years of age from being- employed in or about a mine. The Alabama cases cited by appellant, to the effect that the defendant would not be guilty for violating the law for selling liquor to minors or persons of known intemperate habits, are not analogous to the present case, as the court there held that the intent was essential to the crime. Here we are not dealing with a criminal statute, but one which prohibits the employment of a certain class, and the employer must ascertain at his peril whether the child is of the required age. The case of Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338, is not opposed to the present holding and involved a different statute.
There ^ was no reversible error in the second part of the oral charge excepted to by the defendant. Whether the court did or did not correctly state the rule as to the contributory negligence of infants under 14 years of age, generally speaking, error, if any, could be of no avail in the instant case as the court could, as matter of law, have instructed that' the plaintiff was not and could not be guilty of contributory negligence.— Lenahan v. Pittston, 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885, and authorities supra. The case of Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389, presents a well-considered opinion by the Indiana court, wherein many authorities are cited in support of the ■holding that: “The employer of a child in violation of a specific statute cannot screen itself from liability for an injury sustained by the child in its service because the injury was occasioned through such negli[196]*196gence, imprudence, or childish traits as gave rise to the statute. It follows, therefore, that if appellee was employed and injured, as alleged in the second paragraph of complaint, under the law he cannot be chargeable either with having assumed any risks of employment or with negligence contributing to his injury.” It may be true that the defendant had pleas of contributory negligence and to which demurrers should have been sustained, but, notwithstanding issue was joined on said pleas, they were not proven and could have been affirmatively charged out. They all charge that the plaintiff was “guilty” of contributory negligence, when, as matter of law, he was not and could not be “guilty” of contributory negligence as charged in said pleas. — Rasco v. Jefferson, 142 Ala. 705, 38 South. 246; Nashville R. R. Co. v. Hill, 146 Ala. 240, 40 South. 612. Nor could there be any injury in charge 13, given at plaintiff’s request, or any other charges given or refused which relate to contributory negligence.
There was no reversible error in giving plaintiff’s written charge 5. It was abstractly correct without the exception, and, as the exception related to contributory negligence, the fact that it may have required the absolute establishment instead of the “reasonable” establishment of the pleas of contributory negligence was error without injury, as there was no contributory negligence, and the court could have charged out said pleas. The trial court did not err in refusing the general charge as to the whole complaint or as to any of the counts which went to the jury. Each of the counts (1, 6, 7, and 8) are for a wrongful, not negligent, employment of the plaintiff in violation of section 1035 of the Code, and there was proof that the boy was under 14 years of age both at the time of employment and [197]*197the injury, and that the injury resulted from the wrongful employment.
The refusal of the defendant’s charge 21, if error, was without injury, as the undisputed evidence sIioavs that the plaintiff was injured by a fall either from the car or while alighting from same.
There ivas no error in overruling the demurrers to counts 1, 6, 7, and 8, as amended. They set up a wrong- ' ful employment, and did not have to charge negligence. They also plainly and clearly shoAv that the plaintiff was not only under 14 years of age Avhen employed, but was under said age when injured. The counts aver that the plaintiff was a minor 13 years of age; that is, that he was 13 years of age at the bringing of the suit. If the complaint avers that he was 13 years of age when the suit was brought, he must have been under 14 Avhen injured, as the injury is set out as having been inflicted prior to the bringing of the suit.
There was no error in refusing the motion for a new trial. The judgment of the city court is affirmed.
Affirmed.
Dowdell, C. J., and Anderson, McClellan, Somerville, and de G-raeeenried, JJ., concur.