Karpeles v. Heine

Smith, J.: The plaintiff brings this action to recover damages for the fault of the defendants in employing the plaintiff to run — 376 — an elevator while he was under the age of sixteen years. By section 93 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1913, chap. 464) it is provided that no child under the age of sixteen years shall be employed or permitted to have the care, custody or management of or to operate an elevator either for freight or passengers. The' plaintiff, under fifteen years of age, was thus employed, and in that employment on July 20, 1915, he received the injuries for which he here seeks compensation. The trial court charged the jury that the negligence claimed was the violation of the statute, but that the plaintiff must prove that he was free from contributory negligence in order to recover. To this charge the plaintiff excepted, contending that the violation of the statute created an absolute liability unaffected by any contributory negligence on the part of the boy. This contention raises the sole issue here for determination. In Bachmann v. Little (152 App. Div. 811) a child under sixteen was employed upon a machine claimed to be dangerous. If dangerous, the statute as it then existed (Labor Law [Gen. Laws, chap. 32; Laws of 1897, chap. 415], § 81, as amd. by Laws of 1906, chap. 366; afterwards Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 81; Id. § 93, as amd. by Laws of 1909, chap. 299; Laws of 1910, chap. 107, and Laws of 1913, chap. 464) was violated. The court refused to allow the defendant to show that the machine had been operated a year and a half without accident, and refused to allow the defendant to cross-examine the plaintiff upon the question of the plaintiff’s contributory negligence. The plaintiff recovered a judgment which was set aside, on the ground of exceptions taken during the trial and that it was against the evidence. This court affirmed the order, holding, first, that the defendant should have been allowed to show that the machine had been operated without accident for a year and a half as bearing upon the question whether the machine was a dangerous machine; second, that the defendant should have been allowed to cross-examine the plaintiff to show his contributory negligence. Mr. Justice McLaughlin, in writing for the court, said: “I. am also of the opinion that the court erred in not permitting — 377 — the defendants’ counsel to cross-examine the plaintiff on the question of his contributory negligence. The statute does not create the cause of action, nor does it provide that its violation in case of injury entitles the one injured to damages. A violation of the statute as indicated undoubtedly furnishes presumptive evidence of defendants’ negligence, and as said in the Marino case, it ‘ 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.’ So here, while it could not be said as matter of law that the plaintiff assumed the risk incident to operating the machine, or that he was guilty of contributory negligence in the manner in which he did operate it, nevertheless, if the court had permitted the defendants to cross-examine the plaintiff on those subjects, his testimony might have been of such a character as would have justified the jury in finding that he was in fact guilty of contributory negligence.” This was concurred in by all the court, except Presiding Justice Ingraham, who concurred in the result upon the ground of the exclusion of evidence that the machine had been in operation for about a year and a half prior to this injury, during which time no accident had happened thereupon. Section 70 of the Labor Law of 1897, which was under consideration in Marino v. Lehmaier (173 N. Y. 530),prohibits the employment of any child under the age of fourteen to work in any factory in this State, and prohibits the employment of any child between fourteen and sixteen without an employment certificate as provided in the article. Section 81 of the former Labor Law, as it was construed in the Bachmann case, prohibited the employment of any child under sixteen in operating dangerous machines of any kind. I can see no difference in principle between the statute construed in the Bachmann case and that construed in the Marino case and the statute here for construction, as far as affects the obligation of a plaintiff in order to recover for a violation thereof to prove his freedom from contributory negligence. Under the statute construed in the Bachmann case, when it once appeared that the machinery — 378 — was dangerous the prohibition was just as absolute against the employment of a minor as is the prohibition under section 93 of the Labor Law involved in the case at bar. That case is the last pronouncement of the law in this department, and should, in the orderly administration of the law, be followed, unless it appears to be contrary to some construction of the law found in the decisions of the Court of Appeals. In the Bachmann case the Gallencamp case (infra) and the Marino case were cited, so that they were before the court and the decisions there construed. In Stenson v. Flick Construction Co. (146 App. Div. 66) this court was considering the employment of a minor in a dangerous occupation contrary to section 289 of the Penal Code, which was re-enacted by section 483 of the Penal Law. The law was there stated in the opinion: “It has been held in many cases that the violation of a statute is some evidence of negligence and that in the case of children of immature years the question of contributory negligence and assumption of risk would then also be for the jury.” In that case is cited the Kircher case (infra) and the Marino case. The plaintiff, appellant, still insists in an action for damages for an injury wherein these statutes were violated that the gist of the action is the violation of the statute, and that the only contributory negligence on the part of the plaintiff which can defeat the action would be misrepresentation as to the plaintiff’s age in procuring the employment. This was stated to be the rule in the dissenting opinion in the case of Gallencamp v. Garvin Machine Co. (91 App. Div. 147; revd., 179 N. Y. 588). In that case the Court of Appeals reversed this court upon this dissenting opinion, but what was there said in reference to contributory negligence was confessedly obiter. It cannot be held to have been intended by the Court of Appeals to overrule the prior decisions of that court in reference to the requirement of the plaintiff to show the absence of contributory negligence as a prerequisite to recovery in cases of this kind. In the case of Kircher v. Iron Clad Mfg. Co. (134 App. Div. 144) it is claimed that Mr. Justice Gaynob lays down the same rule, but I do not so read bis opinion. All he says upon the question of contributory negligence is this: “It is strongly urged for the defendant that a nonsuit should have been granted — 379 — for the reason that there was no evidence showing that the deceased was free from contributory negligence; but it was held in the Marino case that that power was taken away from the court by the effect of the statute. The Koester case confirms this, and further that the unlawful employment makes out a prima facie case for the plaintiff.” That opinion simply states the law as laid down in the Marino case, to the effect that it cannot be held as a matter of law in this class of cases that the plaintiff was guilty of contributory negligence, and under that ruling the court in that case was not justified in nonsuiting the plaintiff. The opinion in the Marino case has been several times quoted in subsequent decisions of the courts, • and has been invariably interpreted simply as forbidding the court to determine as matter of law that the plaintiff either assumed the risk or was guilty. of contributory negligence. It has never been interpreted as holding that upon proof of violation of the statute the plaintiff was relieved from proving lack of contributory negligence in order to recover damages. In Koester v. Rochester Candy Works (194 N. Y. 95) it was held that the gist of the action was the violation of the statute, and the opinion quotes with approval the language of Judge Haight in the Marino case which has been heretofore quoted. In Lee v. Sterling Silk Mfg. Co. (115 App. Div. 589) it was held that a violation of section 70 of the Labor Law of 1897 was not conclusive evidence of negligence or that damages were a necessary consequence thereof, and hence that an action thereunder is governed by the rules of the common law, and it was error to exclude evidence of negligence and contributory negligence on .the theory that the violation being proved, the only question left was the amount of damages. In Amberg v. Kinley (214 N. Y. 531) it was held that a violation of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 82), which required the provision of fire escapes created an absolute liability, provided the absence of the fire escape caused the injury, and provided the negligence of the deceased did not contribute to produce the injury. The court distinguished this case from the cases where a statute in regard to the employment of minors was involved, holding a violation of such a statute was merely some evidence — 380 — of negligence, while the violation of a statute providing for fire escapes was conclusive evidence of negligence. If, then, the violation of a statute made conclusive evidence of negligence gives no cause of action to one who was himself guilty of contributory negligence in causing the injury, it would seem, a fortiori that the violation of a statute which is only some evidence of negligence could not give a better cause of action to one injured thereby, and that the plaintiff’s right of action might be defeated by his failure to show the absence of contributory negligence. The authorities are, therefore, unanimous in requiring the plaintiff to make proof of the absence of contributory negligence in actions for the violation of a statute, with the single exception, if it be an exception, of the adoption by the Court of Appeals of the dissenting opinion of Mr. Justice Ingraham in the Gallencamp case, in which opinion the statement of the rule as to contributory negligence was pure obiter. The judgment should, therefore, be affirmed, with costs. Clarke, P. J., and Scott, J., concurred; Page and Shearn, JJ., dissented.