The proof shows that the plaintiff before working for the-defendant had been employed by one Thayer in 1905 to operate a like machine. Thayer, who was sworn for the plaintiff, testified that he used to show the -plaintiff how to operate it and cautioned him to be careful of his fingers and not to put them into the -machine; The plaintiff admitted that Thayer cautioned, him to be careful. Plaintiff also testified that he kne.w that if he got his. finger down into the machine far enough it would be cut off'; and further, that Mr. Lavar, the defendant’s foreman, also told him to be careful and not .get his fingers in'there. Plaintiff' said that he knew if he got his fingers in far enough they would get pinched off.
There is absolutely no proof in the case that the plaintiff exercised any care in the operation of the machine. He did nol; in any way give any evidence upon which the jury could properly say that the -plaintiff had affirmatively established freedom from contributory negligence.. On the other hand, the proof is that the plaintiff, if lie was sui juris, was guilty of - contributory negligence. This appears from his own. testimony above referred to.
The plaintiff was injured July 26, 1906. His fourteenth birthday was on the fifteenth of that month. In the absence of proof to the contrary the legal presumption, is that he was sui juris. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.) There *253was no claim on the trial and no proof that he was not mi juris, so that force must be given to the legal presumption that he was.
It is clear, too, that the plaintiff’s injuries were not caused by any .defect in the machine even though the clogging was caused by the rim becoming loose, but was caused by his carelessness in using "his hand to remove the meat while the machine was running.
The jury found that the machine was not a dangerous machine, which was clearly inconsistent with its finding that it was not a safe and proper machine upon which the plaintiff should work, there being no evidence that he ivas not sui juris. _
It appears to us that the verdict in two material respects at least is clearly' against the evidence, viz., in the negative answers given to the fourth .and fifth questions submitted to the jury wherein they found that the plaintiff was not properly instructed as to his work with this machine and 'its dangers and that he did not understand and appreciate the danger from putting his hand into the machine as lie did' at the' time he was hurt., This conclusion sufficiently appears from what has already been said, except that it may be added that the question of the plaintiff’s freedom from contributory negligence was only submitted to the jury in connection with the fifth question and their verdict as to that is involved in their answer to that question.
There is nothing in the case of Marino v. Lehmaier (173 N. Y. 530), cited by the respondent, which will save his judgment. That case holds that the provision of section 70 of the Labor Law, prohibiting the employment of a child under the age of fourteen years in any factory, in effect declares that a child under that age does not possess the judgment, discretion, care and caution necessary for the employment in such a dangerous avocation and, therefore, is not as a matter of law chargeable with contributory negligence or with having assumed the risks of the employment.
The plaintiff, as has been shown, had passed that age before he was hurt and, therefore, the prohibition of such section 70 (as amd. by Laws of 1903, chap. 184), or the like provision in section 162 (as amd. supra), prohibiting the employment of a child under fourteen years of age in a mercantile establishment, with certain exceptions mentioned in the section, does not apply.
It was material, however, on the question of the defendant’s *254negligence to show that the plaintiff had been employed by the defendant without obtaining, .the certificate that the former'was physically able to perform the work which he intended to, do, in ' accordance with sections 162 and 163 of the Labor Law (as amd. supra). But upon that question there was no proof that the accident happened because of the failure to comply with, the Labor Law. It is clear, on the contrary, that it happened because of the plaintiff’s failure to use ordinary care to protect himself. His injuries appear to have been the result of liis own carelessness and for that reason his recovery cannot be sustained. (Gallenkamp v. Garvin Machine Co., 91 App. Div. 141; revd., 179 N. Y. 588, on dissenting opinion of Ingraham, J.) The judgment should be reversed and. a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to the appellant to abide event. . '