This case presents but a single question and it is quite important to keep that question clearly in view and avoid confusing it with other questions. The question is, whether the employment of a boy thirteen years and nine months of age is in and of itself proof of negligence in an action against the master. No one denies the proposition that the employment of a boy of tender years to work upon a dangerous machine, without giving him proper instructions, constitutes some proof of negligence, without any statute on the subject. But that principle has no application to this case for the reason that no one claims, or can claim, that a printing press with the power cut off is a dangerous machine, or that the plaintiff needed any instructions as to how it could be cleaned, for he had, at the time of the accident, been engaged in doing that very thing for a month. The plaintiff was nonsuited at the trial, but the learned Appellate Division reversed the judgment, and the ground upon which it was reversed is very clearly and concisely stated in the opinion, as follows: "We agree with the court below that there was no evidence to show that the injury to the plaintiff was caused by the negligence of the defendant, unless the evidence that the plaintiff was employed in a factory in violation of § 70 of the Labor Law (Ch. 415, Laws of 1897) justified a finding that the defendant was guilty of negligence." Here we have the precise question in this case stated in such a manner that it is impossible to confuse it. I do not think that the mere employment of the plaintiff, although in violation of the Labor Law, *Page 541 was any proof of actionable negligence. The rule on that subject is well stated in a recent work on the law of negligence, in which the learned author has exhaustively considered the subject in all its aspects and various distinctions, and the rule with respect to the question involved in this case is stated in the following terms: "There are many statutes and municipal ordinances which forbid the doing of acts the violation of which does not necessarily give any right of action in favor of private individuals; the offense being against the public to be redressed in the one case in a criminal prosecution or in an action brought in behalf of the State by the attorney-general, and in the other by a prosecution in a municipal court. And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages and often not then, the question depending upon judicial theories and surmises." (1 Thompson on Negligence, § 12.) In Knisley v. Pratt (148 N.Y. 372) a young woman lost her arm while working upon a punching machine in a hardware factory. The Factory Act required the cog wheels of such machines to be guarded, and the injury occurred through the lack of such guard in cleaning the machine while in motion. There was in that case a clear omission to observe the provisions of the Factory Act, and yet it was held that the master was not liable. It is no answer to the decision in that case to say that the injured girl was over 21 years of age, since the statute was as clearly violated as to a person of that age as of any other. The matter of age did not enter into the question at all. The sole question was whether the statute created a cause of action in favor of the injured party, and it was held that it did not.
So in this case the judgment must stand or fall upon the undisputed fact that, at the time when the plaintiff was put to work in the printing establishment of the defendant, he was *Page 542 under the age of fourteen years. He was over thirteen, but lacked a few months of fourteen. It does not appear that the defendant knew anything about the age of the boy or that he made any inquiries on that subject. The statute, which is known as the Factory or Labor Law, enacts that "A child under the age of fourteen years shall not be employed in any factory of this State." (L. 1897, ch. 415, § 70.)
It is assumed for all the purposes of this case that the violation of this provision of the statute subjects the employer to some penalty, civil or criminal. The real question, however, is whether it subjects the employer to a civil liability under the general law of negligence. There is nothing in the statute from which it can be inferred that the legislature intended to repeal or change any of the rules of law which, prior to its enactment, were settled in actions of negligence. There is nothing in the statute to indicate that the legislature intended to create any new cause of action or any new ground of civil liability. It sought to regulate the employment of labor in factories and otherwise to a considerable extent, but it left actions for personal injuries on the ground of negligence just where they were before. Now what has been decided in this case is that the mere fact of the employment of the plaintiff upon a printing press before he had arrived at the age of fourteen years, was such proof of negligence on the part of the defendant as would authorize a jury to render a verdict against him for the damages that the plaintiff sustained in consequence of the injury. That is the proposition which this appeal presents. It is quite obvious that the employment of a lad between thirteen and fourteen years of age to work around a printing press is not an act which at common law was any proof of negligence. The employment of boys under that age at some suitable work did not ordinarily subject the employer to civil liability for accidents that might happen to them in the performance of their work. It is true that if a boy of tender years was put upon work at dangerous machinery, not being apprised of the danger or instructed in the manner of using the machine, the master *Page 543 could be held liable for negligence in that respect, but this case does not involve any question of that kind. It is not claimed that the work itself was dangerous or unsuitable for a boy of plaintiff's age. It is not claimed that the machine itself was dangerous when in operation or otherwise, and certainly it is not claimed that when the power was shut off and the machine was completely stopped that it was dangerous to employ the plaintiff in cleaning it, so the defendant's liability, if he is liable at all, must rest upon the fact that he disobeyed the statute.
Thus the question arises here whether every act which is forbidden by law with a penalty, civil or criminal, attached, subjects the doer of the act to civil damages at the suit of another party claiming to be injured by the act. There are numerous statutes that prohibit the doing of certain acts, with civil or criminal penalties attached, which are not in their nature or character negligent acts. For instance, a witness who signs a will without attaching his place of residence to his signature is subjected to a penalty, but no one, I think, would suppose that his omission was of such a character as would subject him to an action of negligence at the suit of some one claiming to be injured. There are a multitude of police regulations, revenue laws and game laws that forbid the doing of certain things, and penalties, civil or criminal, or both, are prescribed for a violation; but it would be difficult to show that negligence could be predicated of the act in addition to the penalties. They are generally acts that are mala prohibita and not mala in se. It is, doubtless, within the power of the legislature to change the law of evidence as applicable to negligence and to prescribe that the violation of a statute shall be followed by civil liability at the suit of the person injured, but nothing of that kind is to be found in the statute in question. A negligent act must be determined from its real character and nature with reference to the duties imposed upon the actor by law and is not to be predicated upon the mere violation of some statute unless the prohibition is of an act which was negligent before *Page 544 the statute was passed or was some proof of negligence; for instance, it has been held that the violation of a municipal ordinance prohibiting a party from allowing horses to stand untied in the street was proof of negligence, but that would be so if the ordinance never had been passed. In Willy v.Mulledy (78 N.Y. 310) a fire took place in one of the lower stories of a tenement house and the plaintiff's wife and child were smothered to death. It seems that the charter of the city required owners of tenement houses to have places of egress to the roofs and also fire escapes, which had not been complied with, and it was held that the defendant was civilly liable and the plaintiff was permitted to recover. That was a case where the statute came in to help the common law. A person who lets a house to tenants without any means of escape from fire does not perform his duty to the tenant and may be held liable for negligence without any statute. The case of Stewart v. Ferguson (164 N.Y. 553) was one in which a person was injured by 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. It was held in that case that the plaintiff could recover, but he could recover just as well before the statute upon proof that the scaffold was unsafe or made of unsuitable materials. That was not a case where the statute created a cause of action. So it is with respect to all the cases cited. None of them establishes the proposition which is contended for in this case, namely, that the violation of a statute forbidding the employment of persons under fourteen years of age is per se proof of negligence. It will not do to say that there was a question of fact, for there was none. There was no dispute about the violation of the statute, and its violation proved negligence or it did not. If it did, then the plaintiff was entitled to recover as matter of law, and there was nothing for the jury to do except to assess the damages. If it did not prove negligence then the action failed. *Page 545
There are many statutes which prohibit the taking of fish and game at certain seasons of the year and subject persons who violate those statutes to civil or criminal penalties; but no one, I think, would claim that if the hunter or fisherman who was engaged in violating the law inflicted an injury upon his attendant or helper, that the violation of the law would have anything to do with his liability for the injury. Smuggling or the violation of revenue laws is an act which is forbidden by statute, but if a person engaged in violating the statute should inflict an injury upon another, the character of the injury, whether actionable or otherwise, would not depend in any degree upon the fact that he was at the same time engaged in violating some law. In other words, penal or prohibitory statutes, as a general thing, are intended to regulate the conduct of individuals, and the violation of such laws may subject the individual to liability to the state, but it does not necessarily follow that as between himself and his neighbor it is an act of negligence that may be made the foundation for civil liability. The legislature once made it a crime to feed a sparrow (L. 1887, ch. 641), but no one, I think, would ever contend that a violation of that statute constituted actionable negligence in a suit by any one. The legal consequences of the violation of a statute forbidding some act that but for the statute was perfectly lawful, do not extend beyond the statutory penalty.
Hence it follows that the violation by the defendant of the Labor Law, while it may have subjected him to the penal consequences prescribed, did not prove or tend to prove that he thereby incurred a liability to the plaintiff on the ground of negligence. This principle is illustrated in a great variety of cases that arose under statutes of the same character. In Brown v. Buffalo and State Line R.R. Co. (22 N.Y. 191, 198) this court quoted a remark of the court in People v. Stevens (13 Wend. 341): "Where a statute creates a new offense, by making that unlawful which was before lawful, and prescribes a particular penalty and mode of proceeding, that penalty can alone be enforced." The language of Lord *Page 546 MANSFIELD in Rex v. Robinson (2 Burr. 800) was also quoted: "The rule is certain that where a statute creates a new offence, by prohibiting and making unlawful anything which was lawful before, and appoints a specific remedy against such new offence (not antecedently unlawful), by a particular sanction and particular method of procedure, that particular method of proceeding must be pursued and no other." And also the language of Chief Justice HOLT in Bartlett v. Vinor (Carth, 252): "A penalty implies a prohibition, though there be no prohibitory words in the statute." The court then proceeded to state that "the principle is a very ancient one, and has never been departed from. It is a most rational interpretation of the lawmaking power. On passing the act or the ordinance in a case where the thing prohibited was lawful before, the lawmakers say to each member of the community, if you do this thing, and as often as you do it, you shall pay such penalty. That is the whole of it. The act of the defendant in this case, of running their train faster than six miles an hour, was, indeed, unlawful, but no more so than if there had been no prohibition in express terms in the ordinance. * * * The act was unlawful, sub modo, not in an absolute sense, so as to make the defendant liable to third parties for all its consequences, but it was unlawful as being prohibited by a law, which declared the consequence of every act of violation of its provisions to be the payment of a specific sum of money by way of penalty." A statute of this state (Penal Code, § 363) makes it a misdemeanor for a person who transacts business to use the designation " Company" or " Co." when no actual partner or partners are represented thereby. This court held in a recent case that an executory contract or agreement executed in such a name in violation of the statute could be enforced and that a violation was no defense. Judge GRAY said that "It simply made it a misdemeanor to do what was therein specified and that is all. To extend its operation as far as the plaintiff would have it would be to give a construction to it which would permit of its injurious operation upon persons whose dealings with *Page 547 the guilty party had been made in entire good faith. Such a construction would be foreign to the purpose of the enactment, contrary to public policy and without support in legal principles." (Sinnott v. German American Bank, 164 N.Y. 391.) Practically the same doctrine was announced in a prior case. (Gay v. Seibold, 97 N.Y. 472.) So it was held in the case ofWood v. Erie Ry. Co. (72 N.Y. 196) that it is no defense to an action against a common carrier for the loss of goods to show that the owner was doing business in violation of that statute and shipped the goods under the fictitious name; so the conclusion is reached that in this case the defendant simply subjected himself to whatever penalty the law fixed to the prohibited act, but his violation of the statute did not create a cause of action in favor of the plaintiff for the recovery of civil damages on the ground of negligence.
The judgment of the Appellate Division should, therefore, be reversed and that entered on the decision of the trial court affirmed, with costs.