Marino v. Lehmaier

• Decision Date: 24 February 1903
• Citation: 66 N.E. 572,173 N.Y. 530
• Parties: MARINO v. LEHMAIER.
• Court: New York Court of Appeals Court of Appeals

173 N.Y. 530

66 N.E. 572

MARINO

v.LEHMAIER.

Court of Appeals of New York.

Feb. 24, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Vito Marino, by Rocco Martorana, guardian ad litem, against Louis A. Lehmaier. From an order of the Appellate Division (72 N. Y. Supp. 1118) reversing a judgment for defendant and granting a new trial, defendant appeals. Affirmed.

Gray and O'Brien, JJ., dissenting.

Albert W. Venino and Maurice Sichel, for appellant.

George Lawyer and William McArthur, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. The defendant was engaged in conducting a printing establishment in the city of New 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 engaged in cleaning the press, his fingers were caught between the cogwheels 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 12 years and 10 months of age, and at the time of the accident he was 13 years and 3 months old. The labor law (section 70) 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 sixteen years shall not be so employed, unless a certificate executed by a health officer be filed in the office of the employer.’ Laws 1897, c. 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 14 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, 36,12 N. E. 286, 289. 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 employé 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 employé 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 employé. * * * 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, 24 N. E. 812, the action was prosecuted to recover damages for injuries resulting to an infant 13 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 & Redfield on Neg. § 218, and authorities there cited; Sullivan v. India Mfg. Co., 113 Mass. 396;Finnerty v. Prentice, 75 N. Y. 615, reported in 8 Wkly. Dig. 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, 42 N. E. 986,32 L. R. A. 367, as controlling upon the question. In that case the plaintiff was upwards of 21 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. Numerous 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 employés. There are, doubtless, numerous statutes which prohibit the doing of certain acts, the violation of which is punishable by penalties or as a misdemeanor,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, 34 Am. Rep. 536, the action was brought by the plaintiff, as administrator, to recover damages for the death 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, 58 N. E. 662, the action was for the negligently causing the death of plaintiff'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: ‘We 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 & Lantern Co., 131 N. Y....