The legislature might have provided that an employer should respond in damages for all injuries sustained by a child under 14 years of age employed by him in violation of section 70 of the Labor Law; but instead it provided that the violator should be guilty of a misdemeanor. It would seem, therefore, that the minority of the court is right in so far as it holds that defendant was not chargeable as matter of law with all injuries that might have resulted to plaintiff while in his employ. But, while the violation of the statute cannot as matter of law charge the offender in damages for all injuries that may come to one whom the statute forbids him to employ, may not the violation of the statute in the case of injuries which could not have happened but for its violation constitute evidence of negligence to be considered by the triers of fact?
This statute was the outcome of lessons taught by experience and emphasized by recent statistics, and its purpose is to save the life and keep the body whole of children of such tender years as not to be able to exercise good judgment in their own protection and not to be trusted to take the same precautions to save themselves from harm that adults would. The statute amounts to a declaration by the state that the *Page 538 employment of children under 14 years of age in a factory is so far neglectful of their lives and limbs as to make it the duty of the state in the exercise of its police power to forbid such employment and enforce its command by penalties. Now, while the offense against the state is only punishable by it as a misdemeanor, the violation of the statute is, as against the child whom the state deems incompetent to contract for such forbidden service, a wrongful and negligent act, which of itself furnishes some evidence of negligence in cases where the accident could not have happened but for an employment to work in a factory.
Now, in this case, the boy hired out to defendant as an errand boy. When he asked for an increase in wages he was set to work on the press where he received the injury. His testimony on that subject is, in part, as follows: "How I came to work there is, I was with another friend of mine looking for a job, and as we went around Beekman street, there were some other boys who got out of a place and told us there was a boy wanted at Lehmaier Brother. So we went there and we asked if we could not work. So Ernest, the shipping clerk, engaged me there. I was engaged to run errands outside. I was to get $3 a week. I ceased to work for Mr. Lehmaier September 15th, 1900. Ernest, the shipping clerk, set me to work there when I first went. First to run errands. I workedtwo and a half or three months at errands. Then I asked for anincrease in my wages, and they said they needed me upstairs, theprinting machine, and they asked me if I would like to go upthere; and the foreman put me up there; they put me on a Gordonmachine. I worked that machine three months or two and a half." Then this accident happened and the work stopped, because of the accident and the injury. Against such an accident the state attempted to guard this boy among others. But the defendant disregarded the law and employed and gave directions to one of the subjects of the state in violation of the state's policy, and the outcome of it was an injury to the child which could not have happened had the law been observed. *Page 539 In such a case it would seem that the necessary and logical practice would be 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.
There is much authority in support of this view. In McGrath v. N.Y.C. H.R.R.R. Co. (63 N.Y. 522) it was held that a violation of an ordinance of a municipality regulating the speed of trains through it is some evidence upon the question of negligence and must be submitted to the jury. And that rule has been followed since in a long line of railroad cases.
In Knupfle v. Knickerbocker Ice Co. (84 N.Y. 488) an ordinance of the city of Brooklyn prohibited the leaving of horses attached to vehicles in any street, unless there were a person in charge or the horses were secured to a tying post. The violation of that ordinance by the driver of a wagon of defendant resulted in a runaway and the killing of a child, for which recovery was had and sustained. This court held that while the disregard of the ordinance was not conclusive evidence of negligence, yet it was some evidence for the consideration of the jury.
In McRickard v. Flint (114 N.Y. 222) the owner of a building neglected to comply with a statutory requirement that an elevator shaft should be protected by a railing and trap doors approved by the superintendent of buildings, and that such trap doors should be closed except when the elevator was in actual use. In an action for injuries, which would not have occurred if the statute had been complied with it was held that violation of the statute, while not conclusive, constituted some evidence of negligence, and was properly submitted to the jury.
In Graham v. Manhattan Ry. Co. (149 N.Y. 336) it appeared that a statute required that there should be gates on elevated trains and that they should be kept closed while the car was in motion; and it was held that a failure on the part of defendant to obey this statute constituted evidence of negligence *Page 540 toward a passenger who was injured while trying to save himself from being pushed from the platform by a movement of the crowd.
Willy v. Mulledy (78 N.Y. 310); Pauley v. S.G. L. Co. (131 N.Y. 90); Huda v. American Glucose Co. (154 N.Y. 474) and Stewart v. Ferguson (164 N.Y. 553), referred to by Judge HAIGHT, tend in the same direction.
I concur with Judge HAIGHT for affirmance.