The foreman of the defendant admitted upon the stand that he knew that the machine at which he directed this boy, only fourteen years and nine months of age, to work was dangerous. The exposed-cog wheels which inflicted the injuries were within a few feet of the table at which the boy was working, and there was no intervening guard or railing or other obstruction to prevent access thereto. The defendant failed to guard the cog wheel's as required by section 81 of the Labor Law*, and that alone was evidence of its negligence sufficient to take the case to the jury and to sustain the’ verdict on that branch of the case. As I view the evidence, it can neither be said as matter of law that the boy was guilty of contributory negligence nor that the verdict in his favor is against the weight of the evidence on that question. According to his testimony, he was doing the work as he had been instructed to do it and had done it for two and one-half weeks, and as his predecessors had always done it while he had been employed there, for a period of about eight months. The general foreman .who assigned the plaintiff to this work of punching holes in the pipe, denies that the proper performance of the work required that the boy should.go upon the platform where he met with the injuries or that he ever saw him upon the platform while the machinery was in motion; but he does not deny that he observed or- knew that the plaintiff was throwing the punched tubing upon the platform, and he does not state the instructions that were given tó him.' According to the testimony of the plaintiff, he had never put the punched tubing into a box on the right. The general foreman says it should have been put in a box on the right, and while the testimony of the plaintiff is controverted by evidence tending to show that he was observed at times using a box on the right and that he was using such a box on the' morning of - the acci- . dent, there is no evidence that he was using such a box during the afternoon, and no one testifies that a box had been provided for his use that afternoon or was found there after the accident. The gen*601eral foreman says he does not know where the boy would put the pipes if no box were provided for that purpose. A department foreman, called by the defendant, testified that he instructed the plaintiff how to operate the machine, and testified further, on direct examination, that “lie took those pieces of tubes from my department in a box. They were in a box. He had the box on the left of where he was operating, and I told him to get the box after he punched them and put them, in the box to save the-time of picking them tip again, and put them back into the box.” If those were the instructions, they were, to say the least, ambiguous on the point as to whether there was to be more than one box. The plaintiff testified that his instructions were to wipe the oil off the tubing after punching them and to put them back in the same box from which he had taken them. This required that they be thrown on the floor or elsewhere until all in the box had been punched. This same department foreman testified that he had seen the plaintiff throw pieces of tubing onto the platform instead of putting them into the box, and that some 'would go onto the floor and some upon the platform. He says that he did not speak to the plaintiff about this the day of the accidént, but “ I reminded him previous to that day. I can’t say how many times I have had occasion to speak to him about keeping those things off that platform,” and that he also warned plaintiff against making a short cut across this platform instead of going around the rail to reach another part of the department. The plaintiff denied that he was so warned, and testified that the floor below the platform was all occupied, so that there was no place to throw the punched tubes excepting onto the platform, which merely required that they be dropped or shoved off the end of the table. Another department foreman, who had occasion to pass the place where the plaintiff was working frequently, could not testify that he had ever seen him using a box on the right in which to put the punched tubing. Hnless the plaintiff committed perjury, he was at the time of receiving the injuries engaged in the performance of his duties' as he had been instructed to perform them, and as the general foreman who assigned him to the work had frequently’observed him performing them. There is no room for an honest mistake with ■respect to the testimony, and in the circumstances I think it cannot be said that it is so overborne by the testimony of foremen who *602would at least be censurable for failing to give the boy further instructions with reference to the performance of his duties, that the verdict is against the weight of the evidence. I, therefore, vote for affirmance.
Judgment and order reversed, new "trial ordered, costs to appellant to abide event.
See Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192. Since amd. by Laws of 1904, chap. 291 and Laws of 1906, chap. 386.— [Rep.