The plaintiff, a boy of fifteen years of' age, was employed by the defendant in its factory and while thus employed sustained the injuries for which he seeks to recover in this action. The complaint alleges that on the 10th day of June, 1902, and prior to that time, the defendant was engaged in making and selling machinery and tools and was the owner of the plant, machinery and other appliances in the building at the corner of Spring and Várick streets, in the city of New York, and was managing, running and conducting the said business and plant, machinery and tools, “ among which was a certain conveyor used to carry tools from the stock room 'to any floor of said building desired, running in a wooden shaft, with swinging shelves hung from chains thereon (and that said conveyor was inherently dangerous and was an unsafe place to work and was not properly guarded or screened, and that all these things were known to the defendant long prior to June 10th, 1902); ” that on the 10th day of June, 1902, while the plaintiff was working in the tool room in pursuance of an agreement between the defendant and the plaintiff’s father, “ the defendant without instructing kini as to the dangersand nature of the conveyor aforesaid, and knowing full well that the said Gustav Gallenkamp, Jr., had never before operated any machine and was wholly unfamiliar with the said conveyor, requested him to leave his proper employment and to operate the conveyor on the fourth floor of the Said building, in violation of paragraph 81 of the Labor Law, being Chapter 415 of the Laws of 1897, as amended by Chapter 192 of the Laws of 1899, and in violation of the agreement ” before referred to; that while so employed *147on said conveyor, without any negligence or fault on his part contributing thereto, one of the swinging shelves of the said conveyor struck the head of the plaintiff, causing a fracture of the base of the skull and other severe injuries.
The right of the plaintiff- to recover, therefore, was based upon a violation of section 81 of the Labor Law. • The provisions of this law which regulate the employment' of infants are contained in article 6 of the act. This article regulates the employment of minors and women, and contains general provisions for the protection of employees in factories and in the operation of machinery, elevators and hoisting shafts. In relation to the employment of minors, section 70 provides that “ a child under the age of fourteen years shall not be employed in any factory in this State.” This is a positive prohibition, a violation of which is a misdemeanor (Penal Code, § 3841), and is evidently based upon the assumption that no child under the age of fourteen years is competent to work in a factory without danger to the child or the coemployees. The Legislature having expressly prohibited the employment of any child under the age of fourteen years in a factory, the employment of a child under that age is at least evidence of negligence which would entitle the child to recover any damages sustained in the .employment, the negligence being in the employment of the child in a factory in violation of the statute. It is entirely immaterial to what work the child so employed is put, as the employment of a child in a factory is a violation of the statute and is thus at least presumptive evidence of the negligence upon which an action to recover for an injury to the child employed in violation of its provisions is based; and in such case negligence of the child in operating the machinery which'caused the injury would not defeat the cause of action. It is the employment of a child in a factory in violation of the statute that is the wrongful act which imposes the liability; and unless the minor can be said by his negligence to have contributed to the act of employment, the question of contributory negligence is not involved.
There can be no liability of the defendant predicated upon section 70, however, as it is conceded that the child was over fifteen years of age at the time of employment and at the time of the injury.
Section 79 of the Labor Law regulates the inclosure and opera*148tion of elevators and hoisting1 shafts, and provides that “ no child under the age of fifteen years shall be employed or permitted to have the care, custody or management of or to operate an elevator in a factory, nor shall any person under the age of eighteen years be employed or permitted to have the care, custody or management of or to operate an elevator therein, running at a speed of over two hundred'feet a minute.” Here is the regulation, for the operation of elevators and hoisting shafts. But this section was not violated, as the plaintiff was over the age of fifteen years at the time of the accident.
The .only other provision of article 6 which can apply is section 81 of the act. That section is headed, Protection of employes operating machinery,” and it provides that the owner or person in charge of a factory where machinery is used shall provide certain belt shifters or other mechanical contrivances for throwing power •off or on belts or pulleys. Provision is then made for properly guarding machinery and for the proper lighting of halls and stairways leading to work rooms ; and then comes-the provision relied on by the plaintiff: “ No male person under eighteen years or- woman under twenty-one years of age shall be permitted or directed to clean machinery while in motion. Children under sixteen'years of age shall not be permitted to operate or assist in operating dangerous machines of any kind.”
We have here the legislative scheme to provide for the safety of minors employed in a factory; and in construing this provision of section 81 it is evident that all of the provisions of article 6 of the Labor Law relating to the employment of minors must be read together. No child under fourteen years of age is to be employed in a factory; no child under fifteen years of age is to be employed or permitted to have the care, custody or management of or to operate an elevator in a factory; and no child under sixteen years, of age is to operate or assist in operating dangerous machinery of any kind. If it had been considered that an elevator or hoisting shaft was a dangerous machine, the prohibition of section 81 of the Labor Law would have applied, and section 79 would have been entirely unnecessary. It was considered essential to provide for the safety of employees in factories that the management or operation of an elevator or hoisting shaft should be absolutely prohibited for a *149minor under fifteen years of age; and it would seem to follow that for a minor over fifteen years of age such employment was subject to the general provisions, that the elevator or hoisting shaft should be kept in proper order, and that the requirements of the law should be complied with. In other words, a child over fifteen years of age was put in the same grade as an adult, so far as the operation of an elevator or hoisting shaft was concerned; and the provisions of section 81 which prohibit an employer from allowing a child under sixteen years of age to operate any dangerous machinery must be read in connection with the former provisions of the statute, which provide a limitation under which no child shall manage or operate an elevator or hoisting shaft. To hold an employer liable for an injury happening to a child over fifteen years of age who was operating an elevator, it was necessary to show that, in addition to its being an elevator or hoisting shaft, its use was subject to some danger not usual to such appliances. The prohibition is against allowing a child under sixteen years of age to operate or assist in operating dangerous machines of any kind. The difference between this prohibition and that contained in section 79 of the Labor Law is apparent.
If the plaintiff had been under fifteen years of age, his employment in relation to this elevator or hoisting shaft would have been a violation of section 79 of the Labor Law. When the Legislature prohibited the employment of children under sixteen years of age, it restricted the prohibition to the operation of a dangerous machine. “ Operate ” is defined by the Standard Dictionary as “ to put in action and supervise the working of; as, to operate a machine ; ” and in the Imperial Dictionary “ to put into or to continue in operation; to work; as, to operate a machine.” Thus by a strict definition the meaning of the phrase “to operate” a machine would be to work the machine, or, in other words, to regulate and c'ontrol its management and operation; and this phrase is used in the statute in connection with section .79 of the Labor Law, which allowed a minor of fifteen years and upwards to be employed in the care, custody, management or operation of elevators in factories.
To make the defendant liable for this accident, therefore, it must appear that the plaintiff .was directed or allowed to operate a dangerous machine, as distinguished from an ordinary elevator or hoist*150ing shaft. I suppose that no machine in motion can be imagined which would not occasion personal injury to one who placed himself in its way. Elevators and hoisting shafts are in common use in almost every building, and it requires but little cafe to avoid injury so long as they are kept in proper order and carefully managed. ' If any one exposed his person to the inside of a shaft in which there is a moving elevator, of course an injury would follow; but still it could not be said that, because of the possibility of such a contingency, an elevator is a dangerous machine, or that one employed in using it was engaged in operating a dangerous machine. It seems to me that the provision of section 81 applies only to a machine which is liable, from the nature of the work that it does, to cause injury to those engaged in its operation. A machine that would not be dangerous if operated by a person skilled in its management would be a dangerous machine for one not so skilled. But an elevator which section 79 of the statute allows a child of fifteen to operate, and which requires only the care of an ordinarily prudent person to be perfectly safe, is not, as I view it, a dangerous machine within the meaning of section 81 of the statute.
I have discussed this statute without reference to the authorities, because I do not find that the question As to the construction of section 81 of the Labor Law has been considered in any of the cases to' which our Attention has been called. In Marino v. Lehmaier (62 App. Div. 43; affd., 173 N. Y. 530) the question was as to the liability of the defendant, who had employed an infant in violation of section 70 of the Labor Law; and it was there held that the fact that the infant requested or consented to such an employment was not contributory negligence that would interfere with his recovery. In the Court of Appeals Judge Haight says : “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.” The chief judge, in a concurring opinion, says: “The statute amounts'to a declaration by the State that the 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 *151employment and enforce its command by penalties. * * * 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.”
But what was said in that case related to the employment of a child which was absolutely prohibited by the statute. Here we have a child who was employed in putting upon an elevator or hoisting shaft tools for use in other parts of the building, an employment which, if the child had been under the age of fifteen years, would have been absolutely prohibited by section 19 of the Labor Law, but which, as he was over fifteen years of age, was allowed by that section.
. The plaintiff testified that he was over fifteen years of age; that when he was employed he was put to work on the third floor of the building in a place called the tool room; that after he had been there eight days, one Lehr, in charge of the tool room, sent him-upstairs to work on what was called a conveyor; that when tools. were needed a brass check was given which was put upon the conveyor to be sent to the floor upon which tools were stored; that the tools called for by this check were those sent on the conveyor to the floor where they were required, and subsequently returned to the tool room in the same Way; that this conveyor had two openings from the shaft into the room, about four feet from the floor, and the rest of the conveyor was inclosed; that the plaintiff was on the side of the shaft where, the pans go down; that there was another boy on the other side of the shaft where the pans go up; that after plaintiff had been at work in this way for four or five hours, a man came to him and gave him five tools and said, “ Hurry up and get these checks for these tools; ” that he went over to the conveyor, made out a slip for the tools and the number of the check that was to come back in their place; that he went to put them on the pan, and as he got them in the pan two of the tools fell over; that he made a grab to catch them, but they were too far gone, and just then a pan came down and caught his head between the pan and the landing; that as he made a grab for the tools he stuck his head in the shaft, and the injury was occasioned by his putting his head into tiie shaft of the elevator. A photograph of this elevátor was intro*152duced in evidence by the plaintiff, which quite plainly shows its construction. The opening was inclosed with iron - doors which,, when opened, would permit one standing upon the floor to place tools or other articles on the pans as they ascended or. descended*: and the only way that a person could possibly be injured was by putting some part of his body into these openings so as to be struck by a pan as it- ascended or descended. These pans were moving slowly, and all that the plaintiff had to do in the operation of this conveyor was to put the tools upon the pan as they went down to be taken off by the boy upon the floor below. He had no control of the management or operation of this machinery; nothing to do with starting it up, or stopping it; did not in any way control its operation ; it was not out of repair in any way.
The constructor of this conveyor was called by plaintiff and testified that the opening of the conveyor was thirty-six inches wide and forty-six inches high, and the distance between the pans was thirteen feet; that these pans traveled twelve feet in eleven seconds ; that the distance between the outside of the pan and the side of the shaft was six and a half inches.
Thus, from the plaintiff’s evidence it appeared that this conveyor was perfectly safe so long as a person- using it did not place some portion of his body inside of the shaft between the pans and beep it there for a sufficient length of time to allow the succeeding pans to strike him. It seems to me clear that- this was not a dangerous, machine as distinguished from an ordinary elevator or other moving machine used in a factory. The knowledge required to safely, operate it was only that common knowledge that every one has in using machinery at all. Nothing was required for perfect safety 1 except to keep out of the shaft, and as the defendant was authorized under section 19 of the Labor Law to employ the plaintiff about this elevator, and as I think it apparent that the machine was not a dangerous machine, as distinguished from elevators and other'moving machines in ordinary use in a factory, the defendant, was not guilty of a violation of section 81 of the Labor Law. A witness who was called for plaintiff testified that he had stuck his -head in this, shaft and had been hit by the pan, and that he knew of another boy who had likewise stuck his head in this shaft and had. also been hit, but there is no evidence that notice of these accidents had ever *153been called to the attention of the owners of the factory, or any one in authority, and it is entirely clear that such an accident was one necessarily caused by a voluntary and unnecessary exposure of the person, which, as in the case of the plaintiff, was the cause of an injury, and not from the nature of the machine itself. The accident, therefore, happened, as I view it, not because of a violation by the defendant of any duty which it owed to the plaintiff, either under the Labor Law or under the general rule regarding the employment of employees, but by a voluntary and unnecessary exposure by the plaintiff which the slightest care would have prevented, and for which the defendant is not responsible.
I think, therefore, that the dismissal of the complaint was correct,, and that the judgment should be affirmed, with costs.
McLaughlin, <L, concurred.
Jndgment reversed, new trial ordered, costs to appellant to abide; event.