take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed. The duty in such cases to warn and instruct grows naturally out of the ignorance or inexperience of the employee. * * * In view of the youth and want of experience in the business on the part of Rummel (plaintiff), it was necessarily a question for the jury whether his employer had sufficiently warned and instructed him about the dangers of the employment, and how to avoid them, or had done all that was reasonably necessary to protect him from injury.' (p. 520, 19 A.p. 345).
In Fisher v. Delaware & Hudson Canal Co., 153 Pa. 379, 26 A. 18 (1893), where the defendant was held liable to a 13-year old plaintiff who was injured while picking slate from the top of its coal cars, the court approved a charge which said: 'There is another duty which the employer owes to a child or infant, and that is to inform him of the dangers connected with the services in which he is employed. If that information, taken in connection with what the employee must know from his personal and constant observation, is sufficient to enable him to understand clearly the dangers to which he is exposed, then that duty is discharged on the part of the employer.' (p. 384, 26 A.p. 19). 'If the circumstances are such that the employer must perceive that the boy has not the capacity to realize the dangers to which he is exposed, he ought not to be put in that employment.' (p. 384, 26 A.p. 19). See also Kehler v. Schwenk, 151 Pa. 505, 520, 25 A. 130 (1892).
The status of the decedent as an infant therefore makes the labeling of him as an independent contractor the beginning rather than the end of the question whether the defendant owed to him a special duty of care and protection. For the extent of such duty depends on the defendant's knowledge of his need for such protection and care. This is an individual matter depending on the individual abilities, experience, knowledge and capacity of the infant whose conduct is involved in the immediate case and not on some universal standard applicable to all in the same general class. 57 C.J.S. Master & Servant § 507; 3 Labatt, Master & Servant (1913), § 1154, et seq.
It follows, therefore, that the individual circumstances which would establish the capacities as well as the incapacities of the newsboy for whose death the present suit is brought, as well as the defendant's chargeability with knowledge of them, may not be determined on a motion to dismiss. For on such a motion none of the factors, except what appears in the general charge of negligence, is before us. We may not pass judgment on the case at this time merely because the decedent was a newsboy and he has been characterized in the complaint as an independent contractor. The nature of the hazards of his particular employment, especially at the time and place where he sustained his fatal injuries, his individual need for warning and protection, as well as the defendant's knowledge of the extent of his need, must first appear before the question of responsibility may be determined.
A motion to dismiss may only be granted in the clearest of cases. Where additional facts obviously are required before an ultimate judgment may be formed, the motion must fall. '(A) complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.' 2 Moore, Federal Practice (2d ed.), § 12.08, p. 2245.
AND NOW, December 21, 1962, the motion of defendant, Lancaster Newspapers, Inc., to dismiss, is denied.