Karpeles v. Heine

• Decision Date: 15 July 1919
• Citation: 227 N.Y. 74,124 N.E. 101
• Parties: KARPELES v. HEINE et al.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 74

124 N.E. 101

KARPELES

v.HEINE et al.

Court of Appeals of New York.

July 15, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Hans Karpeles, by Jacob Karpeles, his guardian ad litem, against Marie C. Heine and others, for personal injuries. From a judgment of the Appellate Division (180 App. Div. 375,167 N. Y. Supp. 925), affirming a judgment of the Trial Term, plaintiff appeals. Reversed, and new trial granted.

Charles Caldwell, of New York City, for appellant.

Lawrence B. Cohen, of New York City, for respondents.

CHASE, J.

The plaintiff at the times herein mentioned was a boy about 2 months less than 14 years of age, living with his father and mother on the sixth floor of a tenement house, and is described as ‘very healthy and very smart.’ The house contained 24 apartments and the owners maintained therein an elevator for the use of the tenants. They also employed a superintendent, who had authority to employ a person to run the elevator for them. The plaintiff frequently rode on the elevator, and at times sought to manipulate the crank constituting the controller thereof. On the night before the day of the accident the boy employed by the superintendent, and in charge of the elevator, notified him that he was going to leave, but his services were continued until noon of the day of the accident.

About 11 o'clock on that day there were about and near the elevator, which was standing with open door at the ground floor of the building, the superintendent, the boy who was about to leave the employ of the defendants, a boy who had called to make application for employment to run the elevator, and the plaintiff. While they were so in the hallway of the ground floor, a man who had for a long time prior thereto been employed by the tenants in the building as a window cleaner came in and entered the elevator. The plaintiff ran into the elevator and said that he would take the man up to the floor to which he was going, but the man refused to go with him. The superintendent then, referring to the plaintiff and his running the elevator, said that it was all right, and the jury could have found that he had that morning expressly told the plaintiff to take charge of the elevator. What occurred thereafter is shown by the statements of the appellant's counsel made at the opening of the trial as follows:

‘He took the window cleaner up to the third floor and evidently must have come back to the second floor and gotten out of the elevator for some purpose, and then when he went back into the elevator, the elevator having left in the meantime, he fell down the elevator shaft two flights to the basement.’

The window cleaner testified that the plaintiff took him to the third floor and opened the door, and that he (the window cleaner) immediately left the elevator and entered an apartment and did not know of the accident until some time thereafter. While those remaining in the ground floor hallway were waiting, they heard a noise and thereupon investigated and found that the elevator shaft doorway on the second floor was open and that the elevator was slowly moving upwards on its way to the top of the building. The plaintiff was found on the floor of the basement seriously injured. The elevator was subsequently found at the sixth (top) floor. The door leading from the elevator shaft to the hallway on the sixth floor and all other doors except that on the second floor were closed. There is evidence that the elevator had for some reason from time to time slowly moved upwards from the position in which it had been left, the same as it did on the day of the accident to the plaintiff.

The plaintiff testified that he did not remember about the accident except that he remembers opening the elevator door and going out.

The question of the defendants' negligence, including their negligence arising from the violation of section 93 of the Labor Law (chapter 31 of the Consolidated Laws), and also the question whether the plaintiff was guilty of contributory negligence, were left to the jury, and it found a verdict for the defendants. The question is presented on this appeal whether it was error for the court to charge the jury in substance that if the plaintiff was guilty of negligence materially contributing to the injuries received by him, he cannot recover against the defendants.

[1] Apart from recent statutes the rule is quite universal that one cannot recover for personal injuries arising from the negligence of a third person where they were caused in part by the negligence of the person injured. At common law contributory negligence of a person injured is a bar to a recovery of damages alleged to have been caused by the negligence of another.

[2] Except where a child is so young as to be incapable of exercising judgment or discretion, the law of contributory negligence applies when the person injured is an infant the same as when he is an adult, although the age, judgment, intelligence, and experience of the child must be taken into account in determining whether he was negligent. Ihl v. Forty-Second Street, etc., R. R. Co., 47 N. Y. 317, 7 Am. Rep. 450; Honegsberger v. Second Ave. R. R. Co., *40 N. Y. 570.

A person under the age of 16 years has not the experience or mature judgment of an older person. The statute arbitrarily declares 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.’ Section 93.

[3] The prohibition is without qualification or condition. It was enacted to wholly prevent a person of such immature age from running an elevator and exposing himself to the danger incident thereto, and at the same time to relieve persons who are carried on an elevator from the danger which would result from committing the care, custody, management, or operation of the elevator to a person under 16 years of age. It is based upon the legislative determination that a person under 16 years of age has not the experience, judgment, or caution required of one who is to assume the care, custody, management, or operation of an elevator.

[4] The employment of a person under 16 years of age to run an elevator is unlawful. Where a statutory prohibition is not a mere regulation or dependent upon some other fact, such as obtaining a certificate of the capacity of an infant, but is absolute and unqualified, its violation is in itself a basis of liability by the employer to a person who is injured as the proximate result of his employment contrary to the provisions thereof. In such a case the liability is per se. Amberg v. Kinley, 214 N. Y. 531, 108 N. E. 830, L. R. A. 1915E, 519;Koester v. Rochester Candy Co., 194 N. Y. 92, 87 N. E. 77,19 L. R. A. (N. S.) 783,16 Ann. Cas. 589.

‘In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Racine v. Morris, 201 N. Y. 240 ; Watkins v. Naval Colliery Co., L. R. (1912) App. Cas. 693; 27 Halsbury's Laws of England, 192.

‘Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense, ‘must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed.’ Atkinson v. New Castle & Gateshead W. W. Co., L. R. (2 Exch. Div.) 441; Taylor v. L. S. & M. S. Ry. Co., 45 Mich. 74 [7 N. W. 728,40 Am. Rep. 457].

‘Actions to recover damages for the breach of a statutory duty are not to be confounded with those based solely on negligence. In the latter class of cases the violation of a statute or an ordinance, if it has some connection with the injuries complained of, is evidence, more or less cogent, of negligence, which the jury may consider with all the facts proved.’

Amberg v. Kinley, supra, 214 N. Y. 535, 108 N. E. 831, L. R. A. 1915E, 519.

Liability for injuries to a child in the course of his employment contrary to the provisions of a statute which says in substance that he shall not under any circumstances be so employed arises from the disobedience of the statute and the purpose and intent thereof. Koester v. Rochester Candy Co., supra.

In the case of an infant employed in violation of the direct unqualified prohibition of the statute, public policy requires that a recovery for injuries received by such a child in the course of his unlawful employment shall not be defeated by the very negligence, lack of care and caution that the statute was designed to prevent and make impossible, by prohibiting the employment of such a child in such a capacity. Strafford v. Republic Iron & Steel Co., 238 Ill. 371, 87 N. E. 358,20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129;Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 69 Atl. 1116,14 Ann. Cas. 122;Id., 225 Pa. 348, 74 Atl. 215, 133 Am. St. Rep. 844; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229,139 Am. St. Rep. 389.

The statements made herein as to the liability of the employer rest upon the unqualified prohibition of the statute against employing a person under 16 years of age, and are not intended to extend to other cases to which the reasoning herein does not fairly apply.

Where a person under 16 and over 14 years of age is employed for certain purposes without the certificate required by statute (Labor Law, §§ 162 and 163) it has been held that his contributory negligence will defeat a recovery for injuries incurred while so employed. Fortune v. Hall, 122 App. Div. 250,106 N. Y. Supp. 787, affirmed 195 N. Y. 578, 89 N. E. 1100. The failure of an employe to obey the...