White v. Witteman Lithographic Co.

• Decision Date: 01 March 1892
• Citation: 131 N.Y. 631,30 N.E. 236
• Parties: WHITE v. WITTEMAN LITHOGRAPHIC CO.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 631

30 N.E. 236

WHITE

v.WITTEMAN LITHOGRAPHIC CO.

Court of Appeals of New York.

March 1, 1892.

Appeal from supreme court, general term, second department.

Action by Charles White, an infant, by Frank White, his guardian, against the Witteman Lithographic Company, to recover damages for personal injuries. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Affirmed.

James C. Church, for appellant.

Goepel & Raegener, (Benjamin B. Kenyon, of counsel,) for respondent.

EARL, C. J.

The plaintiff, an infant, while in the employment of the defendant was injured by contact with machinery, and he brought this action to recover his damages, and the jury awarded a verdict against him. The plaintiff entered into the employment of the defendant in May, 1888, and was injured about three months thereafter. His duty was to take the papers from the bottom of a big machine as they came through it, and in the discharge of that duty it is undisputed that he was in a perfectly safe place, exposed to no danger. On the day he was injured the machine was not in motion. Another employe was engaged in cleaning it, and requested him to pull out a lever on the side of the machine to start it, and as he did this with his right hand he placed his left hand in the cogs of wheels, and two of his fingers were thus crushed. The plaintiff testified that no one instructed him as to the nature of the machinery, and the danger to be apprehended therefrom. On the contrary, the defendant gave evidence tending to show that he was fully instructed and warned as to the machinery, and that he was not engaged in his regular duty when he was injured, and was actually acting in violation of his previous instructions. The plaintiff's counsel now contends that the plaintiff was employed in violation of the act, chapter 409, Laws 1886, as amended by the act, chapter 462, Laws 1887, which acts provide that ‘no child under the age of thirteen years shall be employed in any manufacturing establishment within this state,’ and that ‘all gearing and belting shall be provided with proper safeguards.’ No question was made upon the trial as to the intelligence and competency of the plaintiff, and it must be assumed that he was sui juris, as no claim was made that he was not.

The only exceptions available to the plaintiff are those taken to the charge of the judge, and that we may appreciate them we will transcribe so much of the charge as is needful for that purpose. He said: ‘Now, in order to recover anything against defendants in a case of this kind, it must be shown that they were negligent, that is to say, that they failed to comply with some obligation which the law imposed upon them. In this case it is suggested, on behalf of the plaintiff, that they were negligent in three respects: First-in employing so young a boy, he being under the age of 14 at the time of the accident, there being a statute in this state which prohibits the employment in a manufacturing establishment of boys under 14. I charge you that he cannot avail himself of any such condition as that, because he went there, and sought this employment. Possibly some one else might make that point available,-his father might in a suit for loss of services,-but the boy himself, knowing he was under 14, and having gone there for such employment, cannot use that fact against the defendant. Then, again, it is also claimed, or suggested at any rate, that the defendant failed in not guarding this machine in a particular manner described by the same statute to which I have referred. But that point is not available against the defendant, under the evidence in this case, because the boy was aware of the absence of the guards, and he must be held to have assumed the risks of working on the machine without a guard. No recovery can be had in that view of the case, and it therefore comes down to this question: Were the defendants negligent in failing to give this boy proper instructions as to the danger of working at or about this machine?’ He then charged the jury fully as to the duty of the employer to instruct such a boy as to the character of the machinery, and the danger to be apprehended therefrom, and he submitted to them, with instructions which are not complained of, the evidence as to that matter. He charged them that if they found that the defendant did fully instruct the boy as to the machinery, or if he fully knew its character and danger at the time of the accident, their verdict should be in favor of the defendant; but that if he was not so instructed, and was free from contributory negligence, their verdict should be for the plaintiff. Upon requests of defendant's counsel he further charged as follows: ‘If the jury find that ...