McCLLAN, C. J.
— This action sounds in damages for personal injuries sustained by the plaintiff, Goforth, while in the employment of the defendants, Worthington & Co. rrhe plaintiff Avas sixteen years old at the time the injuries were received. He Avas hurt in an attempt to mount a moving ore car for the purpose of putting on its brakes and thereby stopping it and two other cars to which it Avas coupled at the proper place on a dump up or along Avhich the three cars Avere being pushed by a steam locomotive. He testifies, that this was not within the scope of his employment but that he was ordered to do it by one Livingston, who was defendants’ superin[659]*659temlent. Livingston testifies that lie did not so order plaintiff.on the occasion of the injury. According to the testimony of the plaintiff himself the injury resulted from the defective condition of a handhold on the side of the car, which he took hold of in his effort to ascend and which gave way and thus caused him to fall when he was run upon or against by the car, dragged, etc. Other witnesses testify that the hand-hold Avas in perfect condition before and after the occurrence, that plaintiff did not take hold of it at all, but tried to do so, missed it and in some Avay fell and was injured. One or two witnesses say that plaintiff’s foot slipped or turned just as he reached for the hand hold, and seA'eral Avitnesses testify to statements made by the plaintiff to the effect that just as he caught at the hand hold he stepped on a stick Avhich turned AArith him or from AA'hicli liis foot slipped, and that this caused his fall and the ensuing injuries. The evidence showed that the plaintiff had been in the employ of defendants for a year or more and during that time had Avorked at this dump Avliere iron ore AA’as sifted or screened and AA'aslied, that his duties were to take mud balls out of the ore and, at times, to hold the pipe through AA'hicli Avater Avas tliroAvn on the ore being AA'aslied, and that just before being hurt he AA’as engaged in holding the pipe or nozzle. He testifies that while so engaged on this occasion, Livingston, the superintendent, relieved him, taking the nozzle himself, and told him to go and catch the cars that Avere then coming toward the dump, that is told him to go and get upon said cars and put on the.'brakes and stop them at the proper place on the dump. Livingston says that he did take the nozzle from plaintiff at that time, but because plaintiff AA'as not holding it properly, and for the purpose of slioAving him Iioav to hold it; and that he did not order the plaintiff to catch said cars, but that he Avent to them and attempted to get on them of his own AA'ill, though he admits that he had ordered him to do this several times before that. There was no evidence that defendants had eA'er instructed plaintiff as to the dangers incident to mounting the cars Avhile moving as these Avere for the purpose of putting on brakes, and plaintiff, AA’hile admitting he had seen other boys and [660]*660men catching the cars there day after day and observed how they got np on the moving cars and that he had performed this sendee himself a good many times before and knew the means provided to that end and how to use them in ascending the cars, says further that he did not understand the danger of attempting to do so, his testimony on the point being as follows: “I could wind up the brake all right at the time I was hurt. I could get on the cars all the time till I got hurt. I failed to get on that once. I caught the hand-hold all right when it gave way. * * * I had seen the cars run in there and stopped before. I had been along there day after day when it was being done. I observed the way the cars were run and saw them being run day after day before I was hurt. . I saw the dump boys catch them every day as they came in and get on them and put on brakes. There were men there for that purpose all the time. I saw them catching cars time after time. I have seen them get on and put on brakes. '* * * I also worked several pieces of days catching cars before I got hurt. I guess three or four at different times. That Avas hardly more than a week before I was hurt. * * * I had caught the cars myself a few times before the day I got hurt on several different days. I had seen other felloAVS get on the.cars and set up the brakes and I had done it myself. I didn’t understand it. I just went and done it as they had done it. I saAv how they did it, I didn’t understand it, etc.” No evidence Avas offered as to plaintiff’s intelligence or physical or mental development. The presumption of fact is that he Avas possessed of that degree of intelligence which is common to boys of sixteen years of age, and the presumption of Iuav in the absence of eAridence to the contrary is that a boy of that age is capable of recognizing and appreciating such ordinary and patent danger as is incident to climbing or attempting to climb upon moving cars. — 1 Bailey’s Personal Injuries, § 2767. There is nothing in this record to rebut either of these presumptions. To the contrary the testimony of the plaintiff himself shows that he knew all about getting upon the ore cars from having seen many others, men and boys, do it at many times, and from [661]*661having done it many times himself, and that he had ample physical capacity to get upon them and set the brakes on them; and his further statement that despite his entirely adequate knowledge and capacity mental and physical in the premises he “did not understand it,” amounts to' nothing whatever. It thus appearing that he knew perfectly well Iioav to do the Avork he AA'as sent to do, if indeed he AA'as sent, and Avas competent to do it, and the danger incident to it being open and patent to one of his presumed understanding, there was in the first place no duty resting on defendants to instruct him in regard to it, and in the second place, if abstractly there" was any such duty, its non-performance was AA'holly innocuous for that he already kneAV everything in the connection under inquiry which the discharge of the duty Avould have brought to his knowledge, and in such (-ase the neglect of the duty involves no damnifying consequences. — 1 Bailey’s Per. Inj. § § 2766, et seq.; Holland v. Tenn.Goal, Iron & R. R. Co., 91 Ala. 444; Ogley v. Miles, 139 N. Y. 458; Palmer v. Harrison, 57 Mich. 182; Truntle v. North Star Woolen Mills Co., 57 Minn. 52; Coullard v. Tecumseh Mills, 151 Mass. 85; Pratt v. Prouty, 153 Mass. 333; Tinkham v. Sawyer, 153 Mass. 485; Williamson v. Sheldon Marble Co., 66 Vt. 427. We therefore reach the conclusion that there Avas no evidence in the case to support the second count of the complaint, or to show that the danger from which plaintiff suffered was latent in character, unless the hand-hold Avas defective and he was injured thereby, or to show that plaintiff’s injuries Avere caused by his youth and inexperience or by defendants’ failure to instruct him as to the danger of catching the cars while in motion; and it follows that charges 1, 2, 3 and 5 requested by the defendants should haA'e been given. On the state of the record indicated Ave deem it unnecessary to revieAV the trial court’s ruling on the demurrer to the second count.
The third count of the complaint avers in substance that plaintiff Avas hired to the defendants by his father not to do the dangerous work of catching and climbing upon cars, but to pick mud balls out of the ore at the Avasher and to Avork about the washer, which was work suited to his youth and inexperience, and that defend[662]
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McCLLAN, C. J.
— This action sounds in damages for personal injuries sustained by the plaintiff, Goforth, while in the employment of the defendants, Worthington & Co. rrhe plaintiff Avas sixteen years old at the time the injuries were received. He Avas hurt in an attempt to mount a moving ore car for the purpose of putting on its brakes and thereby stopping it and two other cars to which it Avas coupled at the proper place on a dump up or along Avhich the three cars Avere being pushed by a steam locomotive. He testifies, that this was not within the scope of his employment but that he was ordered to do it by one Livingston, who was defendants’ superin[659]*659temlent. Livingston testifies that lie did not so order plaintiff.on the occasion of the injury. According to the testimony of the plaintiff himself the injury resulted from the defective condition of a handhold on the side of the car, which he took hold of in his effort to ascend and which gave way and thus caused him to fall when he was run upon or against by the car, dragged, etc. Other witnesses testify that the hand-hold Avas in perfect condition before and after the occurrence, that plaintiff did not take hold of it at all, but tried to do so, missed it and in some Avay fell and was injured. One or two witnesses say that plaintiff’s foot slipped or turned just as he reached for the hand hold, and seA'eral Avitnesses testify to statements made by the plaintiff to the effect that just as he caught at the hand hold he stepped on a stick Avhich turned AArith him or from AA'hicli liis foot slipped, and that this caused his fall and the ensuing injuries. The evidence showed that the plaintiff had been in the employ of defendants for a year or more and during that time had Avorked at this dump Avliere iron ore AA’as sifted or screened and AA'aslied, that his duties were to take mud balls out of the ore and, at times, to hold the pipe through AA'hicli Avater Avas tliroAvn on the ore being AA'aslied, and that just before being hurt he AA’as engaged in holding the pipe or nozzle. He testifies that while so engaged on this occasion, Livingston, the superintendent, relieved him, taking the nozzle himself, and told him to go and catch the cars that Avere then coming toward the dump, that is told him to go and get upon said cars and put on the.'brakes and stop them at the proper place on the dump. Livingston says that he did take the nozzle from plaintiff at that time, but because plaintiff AA'as not holding it properly, and for the purpose of slioAving him Iioav to hold it; and that he did not order the plaintiff to catch said cars, but that he Avent to them and attempted to get on them of his own AA'ill, though he admits that he had ordered him to do this several times before that. There was no evidence that defendants had eA'er instructed plaintiff as to the dangers incident to mounting the cars Avhile moving as these Avere for the purpose of putting on brakes, and plaintiff, AA’hile admitting he had seen other boys and [660]*660men catching the cars there day after day and observed how they got np on the moving cars and that he had performed this sendee himself a good many times before and knew the means provided to that end and how to use them in ascending the cars, says further that he did not understand the danger of attempting to do so, his testimony on the point being as follows: “I could wind up the brake all right at the time I was hurt. I could get on the cars all the time till I got hurt. I failed to get on that once. I caught the hand-hold all right when it gave way. * * * I had seen the cars run in there and stopped before. I had been along there day after day when it was being done. I observed the way the cars were run and saw them being run day after day before I was hurt. . I saw the dump boys catch them every day as they came in and get on them and put on brakes. There were men there for that purpose all the time. I saw them catching cars time after time. I have seen them get on and put on brakes. '* * * I also worked several pieces of days catching cars before I got hurt. I guess three or four at different times. That Avas hardly more than a week before I was hurt. * * * I had caught the cars myself a few times before the day I got hurt on several different days. I had seen other felloAVS get on the.cars and set up the brakes and I had done it myself. I didn’t understand it. I just went and done it as they had done it. I saAv how they did it, I didn’t understand it, etc.” No evidence Avas offered as to plaintiff’s intelligence or physical or mental development. The presumption of fact is that he Avas possessed of that degree of intelligence which is common to boys of sixteen years of age, and the presumption of Iuav in the absence of eAridence to the contrary is that a boy of that age is capable of recognizing and appreciating such ordinary and patent danger as is incident to climbing or attempting to climb upon moving cars. — 1 Bailey’s Personal Injuries, § 2767. There is nothing in this record to rebut either of these presumptions. To the contrary the testimony of the plaintiff himself shows that he knew all about getting upon the ore cars from having seen many others, men and boys, do it at many times, and from [661]*661having done it many times himself, and that he had ample physical capacity to get upon them and set the brakes on them; and his further statement that despite his entirely adequate knowledge and capacity mental and physical in the premises he “did not understand it,” amounts to' nothing whatever. It thus appearing that he knew perfectly well Iioav to do the Avork he AA'as sent to do, if indeed he AA'as sent, and Avas competent to do it, and the danger incident to it being open and patent to one of his presumed understanding, there was in the first place no duty resting on defendants to instruct him in regard to it, and in the second place, if abstractly there" was any such duty, its non-performance was AA'holly innocuous for that he already kneAV everything in the connection under inquiry which the discharge of the duty Avould have brought to his knowledge, and in such (-ase the neglect of the duty involves no damnifying consequences. — 1 Bailey’s Per. Inj. § § 2766, et seq.; Holland v. Tenn.Goal, Iron & R. R. Co., 91 Ala. 444; Ogley v. Miles, 139 N. Y. 458; Palmer v. Harrison, 57 Mich. 182; Truntle v. North Star Woolen Mills Co., 57 Minn. 52; Coullard v. Tecumseh Mills, 151 Mass. 85; Pratt v. Prouty, 153 Mass. 333; Tinkham v. Sawyer, 153 Mass. 485; Williamson v. Sheldon Marble Co., 66 Vt. 427. We therefore reach the conclusion that there Avas no evidence in the case to support the second count of the complaint, or to show that the danger from which plaintiff suffered was latent in character, unless the hand-hold Avas defective and he was injured thereby, or to show that plaintiff’s injuries Avere caused by his youth and inexperience or by defendants’ failure to instruct him as to the danger of catching the cars while in motion; and it follows that charges 1, 2, 3 and 5 requested by the defendants should haA'e been given. On the state of the record indicated Ave deem it unnecessary to revieAV the trial court’s ruling on the demurrer to the second count.
The third count of the complaint avers in substance that plaintiff Avas hired to the defendants by his father not to do the dangerous work of catching and climbing upon cars, but to pick mud balls out of the ore at the Avasher and to Avork about the washer, which was work suited to his youth and inexperience, and that defend[662]*662ants were guilty of negligence in changing him from this safe work to the dangerous work of catching and climbing upon cars, and that defendants did not instruct him as to the dangers incident to catching and climbing onto cars, and that on account of his youth and inexperience he did not sufficiently understand and realize himself the danger of such work, and further that the place where they thus put him to work ‘“was not a safe place for plaintiff, on account of his youth and inexperience, to work, but was a hazardous and dangerous place for him to work, and that he was caught, run upon and dragged [as described in a part of this count which we have not stated or set out] and suffered the injuries, damages and loss above alleged by means of the negligence of the defendants in putting him , at such hazardous and dangerous work for a youth of his immature strength, years and experience.” The contract of employment being between plaintiff’s father and the defendants, the breach of it averred in this count can be of no avail to the plaintiff as a basis of damages; but the averment of the contract and its breach is proper here and has an office to perform as showing the scope of plaintiff’s duties under his employment and that the thing he was engaged upon by defendants’ orders at the time he was hurt was beyond the scope of his employment. The averment puts the plaintiff in the attitude of a stranger casually upon the defendants’ premises and ordered by them to catch, mount and put the brakes on the moving ore cars. And this action on the part of-the defendants is assailed in the count only on the ground that plaintiff was a youth lacking in strength and mental capacity adequate to the safe performance by him of the work he, was put to do and that he was put to the work without being instructed as to the dangers incident to it and was injured in consequence. Granting that this count states a cause of action, it is to be said of it what has been said of the 2nd count, that the:ye is no tendency of the evidence to support it. The plaintiff as shown by the testimony was of sufficient capacity in eArery respect to do the Avork, the dangers of it Avere patent, and he Avas fully advised of them and of the Avay in which the work should be done as he .could haAre been by the defendants: [663]*663They could have told him nothing in the premises which he did not already know. Hence our conclusion that the general charge requested by the defendants on this count should also have been given.
The rulings of the trial court on the admissibility of testimony are free from error prejudicial to appellants.
Reversed and remanded.