JENKS, J.:

The court left nothing to the jury save an assessment of the damages, and the appeal is by the defendant. The action is by an infant servant (through guardian) against his master. The complaint is that the servant when thirteen years old was directed to work about dangerous machinery by the master who knew the servant's years and gave such direction contrary to the statute, who negligently permitted parts of the machinery to fall into disrepair and become dangerous and so to remain, who neglected to tell the servant of the danger or to instruct him how to work or to inform him of the defective conditions, whereby through such neglects, and also failure to provide a safe place to work and safe appliances, one of the servant's fingers was caught in the machinery and crushed. The answer aside from the admission of employment is substantially a general denial. The position of the learned trial court, shown both by its rulings and its charge on the trial and its opinion handed down upon the motion for a new trial ( 47 Misc. Rep. 182) is that if the master hired the servant when under the age of fourteen years there could be no question of contributory negligence of the plaintiff or of the negligence of the defendant. In other words, upon proof of a hiring in violation of section 70 of the Labor Law (Laws of 1897, chap. 415) the sole question was the amount of damages. The defendant protected itself by exceptions sufficient to raise the question whether these rulings were right.

I am of opinion that the learned court erred in excluding all testimony which bore upon the question of contributory negligence and in holding that as matter of law the question could not be in the case. The reason is that this action is subject to the rules of common law. ( Caswell v. Worth, 5 El. Bl. 849; approved and the doctrine reiterated in Knisley v. Pratt, 148 N.Y. 372. ) Section 70 of the Labor Law does not in terms declare and regulate a statutory cause of action and, of course, does not in terms exclude the doctrine of contributory negligence. Some of the authorities which sustain my opinion that the doctrine of contributory negligence has place in such an action are McRickard v. Flint ( 114 N.Y. 222); Freeman v. Glens Falls Paper Mill Co. (70 Hun, 530; affd., 142 N.Y. 639); Queen v. Dayton Coal Co. ( 95 Tenn. 458); Kutchera v. Goodwillie ( 93 Wis. 448). (See, too, Thomp. Neg. [2d ed.] § 5360.) And so in Marino v. Lehmaier ( 173 N.Y. 530), a case which involved this statute, the court say: "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. * * * We, therefore, conclude that under the evidence and the principle of these authorities, at least, a question of fact was presented for the determination of the jury, and in case it should be found that the defendant was negligent and the plaintiff, under the circumstances, was not chargeable with contributory negligence, the defendant was civilly liable."

I think this position taken by the learned trial court requires the reversal of the judgment.

I think that under the rule in this State the fact that the employment of one of the servant's years was in violation of the statute did not establish conclusively the negligence of the defendant. The question was discussed in Marino v. Lehmaier ( supra). If I do not mistake, the ground of difference is this: The majority of the court thought that but for a violation of the statute in the employment of the lad the injury could not have happened, and hence it was concluded that the jury "should be permitted to consider the violation of the statute, in connection with the other facts, as evidence tending to show negligence on the part of defendant." (See opinion of PARKER, Ch. J., at pp. 538, 539.) The minority thought that the more employment of the lad, although in violation of the Labor Law, was not any proof of actionable negligence. (See pp. 540 and 547.)

If I read the decisions correctly, proof of the violation of a statute or ordinance is evidence of negligence. Under the circumstances of a case it may be sufficient evidence; it may be conclusive evidence, but it is not absolutely conclusive evidence in every case so as to exclude proof tending to absolve the defendant. ( Knupfle v. Knickerbocker Ice Co., 84 N.Y. 488; McGrath v. N.Y.C. H.R.R.R. Co., 63 N.Y. 522; McRickard v. Flint, supra; Donnelly v. City of Rochester, 166 N.Y. 315. See, too, Finnegan v. Winslow Skate Mfg. Co., 189 Mass. 580, and authorities cited.) The learned trial court criticises that expression of the rule that a violation of the statute is "some evidence" of negligence. "Some" may mean indefinite or indeterminate as opposed to definite or determinate. In other words, the violation is not determinate proof of negligence. The origin of the expression is probably in the language of the charge reviewed in Beisegel v. New York Central R.R. Co. (14 Abb. Pr. [N.S.] 29-34). It was repeated and adopted in Knupfle v. Knickerbocker Ice Co. ( supra), and it has been frequently used. I find so accurate a writer as the present Chief Judge writes in Donnelly v. City of Rochester ( supra): "Though a violation of the ordinance is not negligence per se, it is some evidence of negligence" (p. 319).

This rule has been the subject of criticism, e.g., Thompson on Negligence ([2d ed.] § 11); Labatt on Master and Servant (§ 799), while courts in other States have held that proof of violation is conclusive evidence. The quarrel with the rule sometimes rests upon the proposition that it clothes a jury with the dispensing power. This is the ground of Judge Thompson's criticism. (Thomp. Neg. [2d ed.] § 11.) But it is to be observed that e.g. this statute, section 70 of the Labor Law, does not declare liability in damages consequent upon its violation; does not specifically provide a statutory right of action and regulate it, so that the violator of the statute must perforce of the violation respond in damages. Nor does it declare that the violation should be conclusive evidence of negligence. It seems to me that the fact that the maxim ubi jus ibi remedium may authorize an action does not warrant the conclusion that liability in such an action as the one at bar is conclusively established by proof of the violation of the jus. Even if we thought otherwise, it is not for us to set up another rule. Recantation or substitution is the prerogative of the Court of Appeals alone.

In the case under review I have shown that the plaintiff did not declare solely upon a violation of section 70 of the Labor Law; his proof was not confined to the proposition that the lad was under fourteen, employed in a factory and was injured while so employed. In other words, the proposition of liability did not rest upon the naked violation of the statute. I am of opinion that the judgment must be reversed and a new trial ordered, costs to abide the event.

WOODWARD, HOOKER and RICH, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.