Marino v. Lehmaier

This action was brought to recover damages for a personal injury.

The defendant was engaged in conducting a printing establishment in the city of Eew York. The plaintiff was first employed by him as an errand boy. He served in that capacity-for the period of about three months and was then set at work in the factory as a feeder of a printing press which he was required to clean every night. On the 15th of September, 1900, while he was engaged in cleaning the press, his fingers were caught between the cog wheels and cut off. The machine was not in motion at the time he commenced to clean it and the evidence is not clear as to the precise manner in which the machine was started. On receiving the injury the boy fainted and was unable to state whether he had previously taken hold of the fly wheel and in so doing started the motion of the machine. He entered the employ of the defendant when he was twelve years and ten months of age, and at the time of the accident he was thirteen years and three months old.

The Labor Law, section seventy, provides : “ A child under the age of fourteen years shall not be employed in any factory in this state. A child between the ages of fourteen and six- . teen years shall not be so employed, unless a certificate executed by a health officer be filed in the office of the employe]1.” (Laws of. 1897, eh. 415.) It will be observed that the first provision of this section is an absolute prohibition, without any qualification, of the employment in a factory of any child under fourteen years of age. This statute was, undoubtedly, passed as a police regulation, designed to protect children of tender age from injuries liable to result from their employment in dangerous avocations, such as the operation of machines or presses usually found in factories. Prior to the adoption of this statute, the rule of liability of an employer is well stated by Peckham, J., in the case of Hickey v. Taaffe (105 N. Y. 26, 36). He says: “ There is no doubt that in putting a person of immature years at work upon machinery which in some aspects may be termed dangerous, an employer is bound to give the employee such instructions as will cause him to fully understand and appreciate the difficulties and dangers of his position and the necessity there is for the exercise of care and caution; merely going through the form of giving instructions, even if such form included everything requisite to a proper discharge of his duties by such employee if understood, would not be sufficient. In placing a person of this description at work upon dangerous machinery, such person must understand, in fact, its dangerous character and be able to appreciate such dangers and the consequences of a want of care, before the master will have discharged his whole duty to such an employee. * * * If a person is so young that even after full instructions he wholly fails to understand them and does not appreciate the dangers arising from a want of care, then he is too young for such employment, and the employer puts or keeps him at such work at his own risk.”

In the case of McCarragher v. Rogers (120 N. Y. 526) the action was prosecuted to recover damages for injuries resulting to an infant thirteen years of age while employed in a factory. The rule, as laid down in that case, was to the effect that, so far as the danger is known and obvious to him, a person of immature years may be legally as responsible for his own protection as an adult, but where judgment and reflection are required to enable a person to appreciate the consequences which might result from the defective character of machinery, the question of contributory negligence of the infant is for the'jury. (See, also, 1 Shearman & Bedfield on Heg. § 218, and authorities there cited; Sullivan v. India Mfg. Co. 113 Mass. 396; Finnerty v. Prentice, 75 N. Y. 615, reported in 8 Weekly Digest, 206.)

It is, thus, apparent that the knowledge and capacity of the infant, his judgment, discretion, care and caution and his ability to know and appreciate the dangers that surrounded him, even prior to the adoption of the Labor Law, were questions of fact for the jury. We do not regard the case of Knisley v. Pratt (148 N. Y. 372) as controlling upon the question. In that case the plaintiff was upwards of twenty-one years of age and her faculties had fully matured. She, consequently, was held to have assumed the risks of the employment. In this case the plaintiff was under the age required by the statute, and he had not arrived at that period in life in which the judgment, discretion and caution of persons ordinarily become mature.

It has been said of the last century that it was the age of invention. Machines had been devised and constructed'with-which very many of the articles used by mankind' were manufactured. FTu mero us factories had been established throughout the country filled with machines, many of which were easily operated, and the practice of employing boys and girls in their operation had become extensive, with the result that injuries to them were of frequent occurrence. We think it is very evident that these reasons induced the legislature to establish definitely an age limit under which children shall not be employed in factories; and, to our minds, the statute, in effect, declares that a child under the age specified presumably does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous avocation, and is, therefore, not, as a matter of law, chargeable with contributory negligence or with having assumed the risks of the employment in such occupation.

It is now claimed that a violation of this statute by the proprietor of a factory does not subject him to civil liability for injuries sustained by his employees. There are, doubtless, numerous statutes which prohibit the doing of certain acts, the violation of which is punishable by penalties or as a misdemean or, in which the wrongdoer may not be civilly liable for damages. We shall not here attempt an enumeration of those statutes or to point out the reasons why civil liability does not attach. Our attention, however, has been called to no statute prohibiting the doing of an act which is dangerous to the life or health of others in which it has been held that the jury may not find negligence and a liability for damages resulting from the doing of the prohibited act. Passing the consideration of all the cases arising under the statutes and ordinances of cities regulating the signals of approaching trains and their speed, under which it has been held that the jury may find negligence, we come directly to the consideration of the cases that have arisen under the statute in question.

In the case of Willy v. Mulledy (78 N. Y. 310) the action was brought by the plaintiff, as administrator, to recover damages for the deatli of his wife. They occupied apartments in a tenement house in the city of Brooklyn, which they had rented of the defendant, the owner. A fire took place in one of the lower stories of the house, and the plaintiff’s wife and child were smothered to death. The charter of the city of Brooklyn at that time required owners of tenement houses to have places of egress to the roofs and also fire escapes upon the houses, which had, not been complied with. It was held that the defendant was civilly liable, and the plaintiff was permitted to recover. Earl, J., in delivering the opinion of the court, after referring to the statute, says: “ Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire escape, and the duty was imposed for the sole benefit of the tenants of the house, so that they would have a mode of escape in case of a fire. For a breach of this duty causing damage it cannot be doubted that the tenants have a remedy. It is a general rule that whenever one owes another a duty, whether such duty be imposed by a voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative, and where a duty is imposed there must be a right to have it performed. When a statute imposes a duty upon a public officer it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of a duty imposed by statute upon any citizen.” The provisions of the Brooklyn charter have, in substance, been incorporated into section 82 of the Labor Law, and are now. a part of the statute under consideration.

In the case of Stewart v. Ferguson (164 N. Y. 553) the action was for the negligently causing the death of plain tiff’s intestate by reason of the fall of a scaffold on which he was at work. Section 18 of the Labor Law prohibited persons employing laborers to work upon a scaffold from furnishing unsafe, unsuitable or improper scaffolding which is not-“so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” It was held that the plaintiff could recover. Landon, J, writing in the case, says: “Ye think sections 18 and 19 of the Labor Law enlarged the duty of the master or employer and extend it to responsibility for the safety of the scaffold itself, and thus, for the want of care in the details of its construction.”

In the case of Pauley v. Steam Gauge c& Lantern Co. (131 N. Y. 90, 96) Finch, J, after referring to the statute requiring fire escapes, says with reference thereto, that it imposed “ a duty upon the owners or occupants of the prescribed class of factories, for an omission to perform which the operatives injured by the omission might recover damages.” He proceeds, however, to show that in that case the owners had supplied two fire escapes upon their factory, thus complying with the statute.

In Huda v. American Glucose Co. (154 N. Y. 474, 481) G-rat, J, says, referring to this same statute : “ It created an absolute duty, and its effect was to give a cause of action for each breach in favor of any one entitled to its observance and injured by a breach.”

In Comyn’s Digest, under head of Actions on Statutes (F), page 4535 it is said: “ So in every case, where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage or for the recompense of a wrong done to him contrary to said law.” (See, also, Pitcher v. Lennon, 12 App. Div. 356; McRichard v. Flint, 114 N. Y. 222, and Hover v. Barhhoof, 44 N. Y. 113.)

We, therefore, conclude that under the evidence and the principle of these authorities, at least, a question of fact was presented for the determination of the jury, and in case it should be found that the defendant was negligent and the plaintiff, under the circumstances, was not chargeable with contributory negligence, the defendant was civilly liable.

The order of the Appellate Division should be affirmed and judgment ordered in favor of the plaintiff upon the stipulation, with costs.

Parker, Ch. J.

The legislature might have provided that an employer should respond in damages for all injuries sustained by a child under 14 years of age employed by him in violation of section 70 of the Labor Law ;. but instead it provided that the violator should be guilty of a misdemeanor. It would seem, therefore, that the minority' of the court is right in so far as it holds that defendant was not chargeable as matter of law with all injuries that might have resulted to plaintiff while in his employ. But, while the violation of the statute cannot as matter of law charge the offender in damages for all injuries that may come to one whom the statute forbids him to employ, may not the violation of the statute in the case of injuries which could not have happened but for its violation constitute evidence of negligence to be considered by the triers of fact ?

This statute was the outcome of lessons taught by experience and emphasized by recent statistics, and its purpose is to save the life and keep the body whole of children of such tender years as not to be able to exercise good judgment in their own protection and not to be trusted to take the same precautions to save themselves from harm that adults would. The statute amounts to a declaration by the state that the employment of children under 14 years of age in a factory is so far neglectful of their lives and limbs as to make it the duty of the state in the exercise of its police power to forbid such employment and enforce its command by penalties. Mow, while the offense against the st^te is only punishable by it as a misdemeanor, the violation of the statute is, as against the child whom the state deems incompetent to contract for such forbidden service, a wrongful and negligent act, which of itself furnishes some evidence of negligence in cases where the accident could not have happened but for an employment to work in a factory.

Mow, in this case, the boy hired out to defendant as an errand boy. When he asked for an increase in wages he was set to work on the press where he received the injury. His testimony on that subject is, in part, as follows: “ How I came to work there is, I was with another friend of mine looking for a job, and as we went around Beekman street, there were some other boys who got out of a place and told us there was a boy wanted at Lehmaier & Brother. So we went there and we asked if we could not work. So Ernest, the shipping clerk, engaged me there. I was engaged to run errands outside. I was to get $3 a week. 1 ceased to work for Mr. Lehmaier September 15th, 1900. Ernest, the shipping clerk, set me to work there when I first went. First to run errands. I worked two cmd a half or three months at errands. Then I asked for an increase in my wages, and they said they needed me upstairs, the printing machine, and they asked me if I would like to go up there ¡ and the foreman put me up there / they put me on a Gordon machine. I worked that machine three months or two and a half.” Then this accident happened and'the work stopped, because of the accident and the injury. Against such an accident the state attempted to guard this boy among others. But the defendant disregarded the law and employed and gave directions to one of the subjects of the state in violation of the state’s policy, and the outcome of it was an injury to the child which could not have happened had the law been observed. In such a case it would seem that the necessary and logical practice would be that the jury should be permitted to consider the violation of the statute, in connection with the other facts, as evidence tending to show negligence on the part of defendant.

There is much authority in support of this view. In McGrath v. N. Y. C. & H. R. R. R. Co. (63 N. Y. 522) it was held that a violation of an ordinance of a municipality regulating the speed of trains through it is some evidence upon the question of negligence and must be submitted to the jury. And that rule has been followed since in a long line of railroad cases.

In Knupfie v. Knickerbocker Ice Co. (84 N. Y. 488) an ordinance of the city of Brooklyn prohibited the leaving of horses attached to vehicles in any street, unless there were a person in charge or the h orses were secured to a tying post. The violation of that ordinance by the driver of a wagon of defendant resulted in a runaway and the killing of a child, for which recovery was had and sustained. This court held that while the disregard of the ordinance was not conclusive evidence of negligence, yet it was some evidence for the consideration of the jury.

In McRickard v. Flint (114 N. Y. 222) the owner of a building neglected to comply with a statutory requirement that an elevator shaft should be protected by a railing and trap doors approved by the superintendent of buildings, and that such trap doors should be closed except when the elevator was in actual use. In an action for injuries, which would not have occurred if the statute had been complied with it was held that violation of the statute, while not conclusive, constituted some evidence of negligence, and was properly submitted to the jury.

In Graham v. Manhattan Ry. Co. (149 N. Y. 336) it appeared that a statute required that there should be gates on elevated trains and that they should be kept closed while the car was in motion ; and it was held that a failure on the part of defendant to obey this statute constituted evidence of negligenee toward a passenger who was injured while trying to save himself from being pushed from the platform by a movement of the crowd.

• Willy v. Mulledy (78 H. Y. 310); Pauley v. S. G. d> L. Go. (131 H. Y. 90); Huda v. American Glucose Go. (154 H. Y. 474) and Stewart v. Ferguson (164 H. Y. 553), referred to by J udge Haight, tend in the same direction.

I concur with Judge Haight for affirmance.