Opinion
May 1, 1907.
N.F. Breen, for the appellant.
John N. Carlisle, for the respondent.
The acts or omissions of the defendant which it is claimed constituted actionable negligence and resulted in injury to the plaintiff are set forth in the complaint. In effect it is alleged:
First, that plaintiff, then being fifteen years of age, was employed by the defendant to work upon and operate a machine which was unsafe, defective and out of repair to defendant's knowledge;
Second, that such machine was not properly guarded as required by law;
Third, that the defendant was negligent in employing the plaintiff in violation of the provisions of the Labor Law (Laws of 1897, chap. 415, and the acts amendatory thereof), in that the defendant employed and permitted the plaintiff to work for it when she had not procured and filed with it an employment certificate as required by said act. (See Labor Law, § 70 et seq., as amd. by Laws of 1903, chap. 184.)
The answer of the defendant put in issue practically all the allegations of the complaint and in addition alleged that the injuries complained of resulted because of plaintiff's own negligence. Proof was given by both parties tending to substantiate their respective claims, but it was practically conceded that no certificate of employment had been obtained and filed with the defendant prior to or at the time of plaintiff's injury or employment. All the issues thus raised either by the pleadings or proofs were submitted to the jury for its determination by a fair and impartial charge to which the appellant took no exception, except that the court refused to permit the jury to consider, as bearing upon defendant's negligence, the fact that it employed the plaintiff and permitted her to work for it when she had not obtained an employment certificate. Such refusal presents practically the only question involved upon this appeal. The evidence as to whether or not the machine upon which the plaintiff was working was defective or out of repair, whether or not the plaintiff had been properly instructed as to its operation and management, and whether or not it was properly guarded, raised questions of fact which were properly submitted to the jury.
But we think it was also competent for the jury to take into consideration, as bearing upon the question of defendant's negligence, the fact that the plaintiff was employed by it without having obtained and filed an employment certificate as required by the statute. ( Sitts v. Waiontha Knitting Co., Ltd., 94 App. Div. 38; Dragotto v. Plunkett, 113 id. 648.)
In the case of Marino v. Lehmaier ( 173 N.Y. 530) it was held that where a child under the age of fourteen years is employed in a factory, in case of injury to such child the bare fact of such employment is in and of itself some evidence of negligence on the part of the employer, because such employment was in violation of the statute. So in the case at bar, the employment of a child between the ages of fourteen and sixteen years without having obtained and filed with the employer an employment certificate, is equally in violation of law, and we can discover no distinction between the two cases. We think it was permissible for the jury to have taken into consideration, as bearing upon the defendant's negligence, the fact that the plaintiff was employed by the defendant when she had not obtained and filed the certificate required by the statute.
We conclude that for this error the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred, except WILLIAMS and KRUSE, JJ., who dissented.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.