FOURTH DEPARTMENT, MAY, 1904.

[Vol. 94.

When an action is brought and tried upon the theory that the plaintiff was properly employed, and not that such employment was in violation of the Labor Law, considered.

APPEAL by the plaintiff, Edith Sitts, an infant, by Nelson J. Sitts, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 14th day of April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Herkimer Trial Term.

Charles E. Snyder, for the appellant.

Charles D. Thomas, for the respondent.

HISCOCK, J.:

Plaintiff brings this action, to recover damages for serious injuries to her arm and hand, claimed to have resulted from the negligence of the defendant, in whose employ she was. She was caught between the rollers of a large mangle which she was operating, and there were presented upon the trial the usual questions of defendant's negligence, the plaintiff's contributory negligence and assumption of risks. Upon this appeal a somewhat unusual phase has been given to those familiar questions through the reliance by plaintiff's counsel upon the provisions of the Labor Law, as establishing in favor of his client a more liberal rule in their solution than would otherwise apply. We think, however, that plaintiff has not by her evidence brought herself within the beneficial provisions of said statute, and that, judged by the rules ordinarily controlling, she has failed to establish a cause of action against the defendant, and that, therefore, the judgment appealed from must be affirmed.

The defendant was a corporation engaged in the business of manufacturing knit goods. In its business it employed the mangle machine in question, which consisted of a system of rollers revolving about a steam-heated cylinder. This cylinder was five feet six inches long, a trifle over a foot in diameter, and its center was three feet from the floor. Located parallel with it were three large revolving rollers and one smaller. One of the large rollers was above the heated cylinder, and one upon each side, and a smaller or doffer roller was upon what was known as the back side of the

App. Div.]

FOURTH DEPARTMENT, MAY, 1904.

machine and below one of the large rollers. The distance from the floor to the crest of the top roller, which was the summit of the machine, was four feet eleven inches. In a general way, garments were put into this machine at the front or receiving side, and passed through the system of rollers to the rear or discharging side, where they were taken by the operator and folded and packed. At the time of the accident plaintiff was at work at the rear or discharging side of the machine. Under the rollers was a table about two feet eight inches wide, where plaintiff received garments from the machine and folded them, etc. There was a guard in front of the rollers upon the front or feeding side of the machine, but none upon the back or discharging side. Without going into the details of the movements of the different rollers, it is sufficient to say that whereas their movement upon the front side was such as to draw the garments in between them and pass them along, their movement upon the back side and in the neighborhood where plaintiff's hands were employed was such as to throw articles out from between the rollers, and not draw them in.

When injured plaintiff was between fifteen and sixteen years of age and had worked at the machine eight days and a half. Having become faint in the course of her work she went to a window to revive, then came back and again became faint and dizzy," things turned black,” and in some manner which is not clearly disclosed her left hand was caught beneath the large roller upon the back of the machine and turned on to the cylinder and injured.

The machine was manufactured by standard makers, and so far as appears was of a pattern in general use.

Plaintiff was a bright, intelligent girl who had been to school more or less and understood the method of operating the machine, the danger of getting her hand caught and the method of doing her work. In discharging her duties she could either sit or stand at the table already mentioned.

Independent of the provisions of the Labor Law invoked for the benefit of the plaintiff and which we shall hereafter consider, we have considerable doubt whether plaintiff established any negligence upon the part of the defendant with respect to this machine, and which is the only theory at all tenable.

There is no suggestion that the machine was out of order, or,

FOURTH DEPARTMENT, MAY, 1904.

[Vol. 94. unless it be in the matter of guards, improper or unsafe, either in its construction or method of operation. Defendant purchased it from reputable makers and it had the indorsement of general usage.

The Labor Law (Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192) provides: "All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded."

As was said by the Court of Appeals in Glens Falls P. C. Co. v. Travelers' Ins. Co. (162 N. Y. 399): "What evidently was intended (by this act) was that those parts of the machinery which were dangerous to the servants whose duty required them to work in its immediate vicinity should be properly guarded, so as to minimize, as far as practicable, the dangers attending their labors. Human foresight is limited, and masters are not called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man as liable to happen."

Under this rule it would seem to be doubtful whether defendant was called upon to guard plaintiff from this machine by means of protective appliances in front of the rollers. Her duty simply called upon her to take the garments when and after they were discharged from the machine. The movement of the rollers at that point was necessarily such as to push her hands away rather than to draw them in. There was nothing which, in the ordinary, proper, legitimate discharge of her duties called upon her to put her hands in close proximity to rollers which might draw them in and injure them. She had been fully instructed in or at least by experience fully understood her duties in this respect. It was only by some such unusual contingency as arose that she could receive injuries, which perhaps might have been avoided if a guard had been in front of some of the rollers. In the absence of more explicit testimony as to the manner in which her hands became injured it is difficult to say that such injury would have been prevented even if the guard had been there. But, at any rate, it is questionable whether defendant in the exercise of reasonable care and foresight ought to have anticipated that plaintiff might suffer a catastrophe under the circumstances presented here and have guarded against the same.

App. Div.]

FOURTH DEPARTMENT, MAY, 1904.

But if it should be assumed that the jury would have been warranted in finding defendant negligent for not putting guards before the machine, we think that under the general prevailing rules it must be held that plaintiff assumed any risks incident to the form and condition of the machine and the method and manner of operating it. A perusal of all of the evidence upon this subject convinces us that the plaintiff was of sufficient age, intelligence and experience to appreciate fully the character of the machine upon which she was working, the dangers incident to its operation, and as fully as defendant the liability through accident or otherwise of her hand coming in contact with and being injured by the unguarded rollers. (Buckley v. G. P. & R. M. Co., 113 N. Y. 540; Knisley v. Pratt, 148 id. 372; Mull v. Curtice Brothers Co., 74 App. Div. 561; Koehler v. Syracuse Specialty Mfg. Co., 12 id. 50.)

The foregoing and many other cases which might be cited fully establish the propositions that risks incident to the operation of machinery arising from or augmented by the failure to comply with the Labor Law may be assumed by an employee so as to discharge from liability the employer. They also establish to our mind that plaintiff, under the circumstances in this case, although an infant, was qualified to assume such risk. Neither is there anything in the principles laid down in the case of Dowd v. N. Y., O. & W. R. Co. (170 N. Y. 459), as construed and interpreted by this court in the case of Ehrenfried v. L. I. & S. Co. (89 App. Div. 135), which prevents the defendant from invoking this defense.

In fact it does not seem to us to be seriously urged by plaintiff that she would not be subject to the defense of having assumed as matter of law any risks incident to the operation of the mangle as it was except for the provisions of the Labor Law and to the construction of which we now pass.

That law (Laws of 1897, chap. 415, $$ 70, 71) amongst other things provides that "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;" that such certificate is to be issued by certain officials "upon the application of the child desiring such employment," and upon certain proof with reference to the date and place of birth of

FOURTH DEPARTMENT, MAY, 1904.

[Vol. 94. the child, and is not to be issued "unless the officer issuing the same is satisfied that such child is fourteen years of age or upwards and is physically able to perform the work which he intends to do."

This statute was before the court for interpretation and construction in the case of Marino v. Lehmaier (173 N. Y. 530). In that case plaintiff, who was an infant under the age of fourteen years, was injured by having his fingers caught in the cog wheels of a printing press while he was cleaning the same. The action was predicated upon the theory of negligence, and we think that the decision in that case may fairly be regarded as authority for the propositions, first, that the effect of the Labor Law is to declare that a child under the age of fourteen presumably does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous avocation as working upon machinery in a factory, and, therefore, is not as a matter of law chargeable with contributory negligence or with having assumed the risks of employment, and, second, that in an action for injuries sustained by an infant employed in violation of the statute, such employment and such violation is in and of itself some evidence of negligence in a case where the accident could not have happened but for the employment.

We also think that the facts in the case at bar are sufficiently favorable to plaintiff in comparison with those disclosed in the Lehmaier case so that an employment by defendant of plaintiff if in violation of the statute would furnish sufficient evidence from which a jury could say that defendant was negligent, and that plaintiff had not assumed the risks of the machinery upon which she was at work.

Proceeding upon this theory of the law the learned counsel for the plaintiff insists that the employment was in violation of the statute; that the statute just as effectually prohibits the employment of a child fifteen years of age as of one under fourteen years when the certificate mentioned has not been filed in the office of the employer, and that in this case, there being no evidence that such certificate ever had been executed or filed with the employer, the prohibition of the statute applies, and it was illegal for defendant to hire plaintiff and put her at work upon this machine. We shall assume that he is right that the employment in a factory of a child