The plaintiff is a Russian, forty years of age, who has been in this country about five years, cannot speak or understand the lam guage and was working for the defendant as a common laborer, receiving one dollar and fifty-four cents per day of eleven hours. He was employed in the clay room of defendant’s factory, into which room chunks of clay were dumped from a car upon the floor near an opening. In this opening in the floor, twenty-four by six-? teen inches, was placed an iron box containing the clay machine, which consists of a pair of iron rollers revolving toward each other about one and a half inches apart. Each roller has small iron bars set at intervals around its circumference. The rollers r.evolve about ten or twelve inches below the floor. Plaintiff’s duties were to take the clay from the floor and shovel it into this machine where it was crushed, and the crushed clay was then elevated by an elevator running through the floor near the clay machine. The elevator consisted of cast iron boxes revolving on two strands of chain which were about ten inches apart, and passed over a sprocket wheel under the floor and another sprocket wheel near the ceiling. As the crushed clay fell from the clay machine these boxes raised it from below, elevating it about ten or twelve feet above the floor onto a chute leading into the dryer. At the time of the accident neither the clay machine nor the elevator was inclosed or guarded, in any manner. The clay upon the floor near the machine, where the plaintiff was standing, was about two feet in thickness. Frequently upon other occasions clay would roll from the floor onto the boxes of the elevator, be carried up a distance and fall out upon .the floor. The plaintiff knew that if his legs were caught in the clay machine, or if a piece of clay hit him upon the head, he might be severely hurt, and he exercised great care in those respects. • There is no evidence that he ever saw any other clay machine or elevator in operation or knew how they should be constructed or *786guarded, or knew that it was the duty of the defendant to guard them or that he had-any right to ask to have them guarded. It does not appear but he .understood that the machines were perfect in every respect and that nothing further could be added with a view to safety. He was evidently more or less unfamiliar with the customs and laws of the country, and probably did not-know that it was criminal for the defendant to put him at work upon these unguarded machines. He began this kind of work for the - defendant about, two years before the accident. He' was then taken to the machine, handed a shovel and was shown how-to use it. Hot understanding the language he had- no conversation with the person putting him to work. He only knew what to do by seeing the overseer use the shovel. While engaged in his duties a chunk of clay fell from the elevator, hit him upon the head, knocked him down, his legs went into the unguarded clay machine and he was severely injured. The complaint was dismissed by the court apparently upon the ground that the. plaintiff had assumed the risk of these unguarded machines.
We must assume that the clay machine and the elevator could have been properly guarded, and that the defendant, by putting the plaintiff at work' upon them in their unguarded condition, was violating the.criminal law. We may fairly infer that an expenditure of a dollar or two probably would have properly boxed both the machine and the elevator in such a manner as not to interfere with their efficiency, and to protect the plaintiff from all injury therefrom.
Where the plaintiff suffers injury by the violation of a statute intended for his benefit, a jury may consider such violation as actionable negligence. “‘ So in every case, where -a statute enacts or prohibits a thing for the benefit of a person, he shall have a, remedy upon the same statute for the thing enacted for his advan-' tage or for the recompense of a wrong done to him contrary to said law.’ ” (Marino v. Lehmaier, 173 N. T. 530, 536.) In that case it was held that a child under fourteen years of. age, employed in violation of the Labor Law (Laws of 1897, chap. 415, § 70), relating to factories, could-recover for an injury received- in. the employment, and that the defense, of assumption of risk was not available.
Plaintiff had a certain right to believe that the defendant had *787properly equipped its factory, had complied with all the requirements of law to make the same as safe as may be, and that it was not furnishing machines for him to work upon in violation of the criminal law. The court was not justified in taking the case from the jury and determining that the plaintiff had assumed the risk of the defendant’s criminal act. The plaintiff was a witness, and, in a sense, an exhibit before the jury. From what took place before them between the witness and the interpreter, and his appearance, the jury were called upon to estimate his intelligence and perceptive powers, and were to consider whether he was probably a reckless man who had intentionally bartered away all regard for his safety, or whether he was an ignorant, unthinking man, who did not and could not realize the dangers by which he was surrounded, or suspect that the conditions were not the proper ones for the business in which he was engaged. It required no particular ability for him to determine that if his foot was caught between the rollers, or if clay hit him upon the head, he would be hurt. His answers upon those subjects show no particular realization of the situation. It was for the jury to determine whether he Fad sufficient intelligence and forethought to properly connect in his mind the risks, and to understand that an injury might result from a combination of various risks-—whether his familiarity with the machinery and his forethought were such that he knew that anything had been omitted from'the machine or elevator necessary to make them reasonably safe. It was evident that from defect of language he could not complain of conditions to his employer or suggest an improvement. He must either work in the situation furnished him or quit the job. Different inferences may well be drawn as to the intelligence and the understanding of the plaintiff, and how much or how little he was capable of realizing, and did realize, the situation and the dangers surrounding him. He made no express contract, and if any contract is to be implied it can only arise so far as his mind fairly grasped the situation. It was peculiarly a question of fact for the jury to determine.
The defendant^ in furnishing this dangerous machine and elevator, was guilty of a crime, and its criminal act has caused the plaintiff’s injury. It is against public policy to permit the court to say that ás a matter of law the defendant may be absolved from the *788consequences of its criminal act and the loss therefrom put solely upon, his employee because the latter was familiar with the machine.
The defendant seeks to shield itself by Knisley v. Pratt (148 N. Y. 372). There the plaintiff .was injured by an unguarded machine, and it was held that lie had full knowledge of its condition and. assumed the risk ' therefrom, the court considering it immaterial whether the duty to guard the machine arose from the common law or the statute, saying (at p. 379): “We are of opinion that there i'S no reason in principle or. authority-why an employee should not be allowed to assume, the obvious risks of the business as well under the Factory Act as otherwise. There is no rule of public policy which prevents an employee from deciding whether, in view of increased wages, the difficulties of obtaining-employment, or other sufficient reasons, it may not be wise, and prudent to accept employment subject to the rule of obvious risks.' The statute does indeed contemplate the protection of a certain class of laborers, but. it does not deprive them of their free agency and the-right to manage their own affairs.”
That case was decided in February, 1896, the accident having occurred in 1891, and we must assume that it was a correct statement of the .public policy of the State at that time. That decision was based upon the understanding at that, time that the employer and employee stood upon an equality of contract and that they solely were interested in the question whether the employee’s life and limb should be risked by the plain violation of' the duty charged by law upon the employer, and that consequently the question was not controlled by the public policy of the State but rested solely upon the wishes and understandings of the employer and employee between themselves. Since that time various enactments have been made by the Legislature for the protection of the life, limb, health and comfort of the employee. They prescribe that certain machinery shall be properly guarded, certain scaffolding used, certain sanitary conditions shall exist in factories; they regulate the time and manner of the payment of wages,- and provide that certain persons, or persons of certain ages, shall not' be permitted to work in various employments, and many other requirements are found which .indicate that the Legislature has deemed it necessary to provide for the protection of the employee, and that it *789cannot trust the employer alone to look to his safety. The various statutory provisions also indicate that the employer cannot disregard his statutory duties even if the employee consents or does not object thereto. Many of these statutes contain provisions making á disregard of the duties enjoined by them criminal, to which is added the general provisions by sections 384g to 384m added to the Penal Code by chapter 416 of the Laws of 1897, by which the violation of the various statutes is declared a crime.
It is unnecessary to refer to particular statutes, for the current of statutory law, both in this State, in the other States and in the nation, proceed upon the theory that the employee cannot select or dictate the machinery or the place of work, but must work in the manner the master requires, and that greed or want of care by the master for the safety of others makes it necessary that he be required to furnish safe machinery, healthy and reasonable conditions under which the servant is to work, and that he alone is responsible for the place and machinery, and that the doctrine of equality of contract between them in those respects has no present foundation in fact; that it is not for them to agree that improper and unsafe risks shall be submitted to, but for the State to require that conditions shall be safe so far as the business fairly permits. Finding that the employee is not able to protect himself against the master in those respects, the State has undertaken to say that certain dangers and conditions shall not be permitted. An employee injured by the criminal neglect of duty by the master is viewed more as the victim of the crime than as a party to it.
Before any such statutes were passed, if an employee was working upon a dangerous machine he perhaps knew its condition as well as the master. What possible good can come to him, to the public or to any one by declaring that the master must guard such dangerous machinery, if the statute is of no effect where the employee knows that the machine is unguarded. A man working at a machine with an unguarded cogwheel in plain sight knows the fact, and knew the fact as well before the statute as after it. And if his knowledge absolved the master from all liability before the statute, and from the same liability after, the statute would seem to be unnecessary anda meaningless form. It should fairly be assumed *790that these statutes were passed for a purpose, and were intended to cure the evil which previously existed. The evil previously existing was that a man who had to work to support himself and family was compelled by force of circumstances to work at dangerous machinery, in dangerous and unhealthy places, when his master by the expenditure of a .few. dollars might make the machinery safe and the place safe and sanitary. The statutes do not refer to the guarding of cogwheels or machinery where the employee did not know of the existence of the cogwheels or machinery, but in general terms require that all cogwheels, shafting and other like machinery of a dangerous nature be properly guarded as far as practicable. The guilt of the employer who violates the statute is the same whether the employee knows or does not know of the existing conditions.
This kind of legislation is only justified by the fact, now well understood, that the employer and the employee do not stand on an equality of contract with, reference to the machinery to be used and the place in which the work is to be performed — that the master and not the servant dictates and determines with reference to those matters, and that the employee must look to the State and not to his employer for protection. The answer that if the employee does not like the machinery he need not work is of but little avail. He must work to support his family, and by necessity he is compelled to use the machinery and appliances which the master furnishes him. He cannot be compelled by the criminal act of the master to unnecessarily risk his life in order that he may support his family. The broad ground justifying all these statutory requirements is that the State is interested in the health, the life, the limb and the prosperity of all its citizens, and that the State has the right to regulate the conduct and conditions between citizen.and citizen so far as public interests are concerned, and in a proper way to prevent the strong from treading upon the weak.
In Simpson v. New York Rubber Co. (80 Hun, 415) the General Term in the second department declared that thé doctrine of assumption of risk did not apply to a case where the employer had violated a criminal statute and thus brought the injury Upon the employee, for the reason that it was against the public policy of the State.
*791In De Young v. Irving (5 App. Div. 499).the Appellate Division of the second department reluctantly concluded that the Simpson case was overruled by the Knisley case, and then suggested that quite probably the Knisley case was in turn overruled by People v. Havnor (149 N. Y. 195) in which the constitutionality of the Sunday Barbering Act was sustained upon the . ground that it was a matter of public interest to the State that its citizens should be strong and able-bodied, capable of self-support and bearing arms, and that such statutes were enacted for the public welfare.
In Johnston v. Fargo (184 N. Y. 379) the employee was injured by the fall of an elevator negligently maintained in defendant’s barn. The defendant relied upon an agreement, signed by the plaintiff at the time he entered the employment, releasing defendant from all damage caused by the negligence of the company or its employees. The court held the defendant liable on the ground that such agreement was void as against public policy. At page 385 the court says: “ The employer and the employed, in theory, deal upon equal terms; but, practically, that is not always the case. The artisan, or workman, may be driven by need; or he may be ignorant, or of improvident character. It is, therefore, for the interest of the community that there should be no encouragement for any relaxation on the employer’s part in his duty of reasonable care for the safety of his employees. That freedom of contract may be said to be affected by the denial of the right to make such agreements, is met by the answer that the restriction is but a salutary one which organized society exacts for the surer protection of its members. While it is true that the individual may be the one who, directly, is interested in the making of such a contract, indirectly, the State, being concerned for the welfare, of all its members, is interested, in the maintenance of the rule of liability and in its enforcement by the courts. To a certain extent the internal activities of organized society are subject to the restraining action of the State. This is evidenced by the many laws upon the statute book in recent years which have been passed for the purpose of prohibiting, restricting or regulating the conduct of a private business, either because regarded as hurtful to the health or welfare of the community or because deemed from its nature or magnitude, affected with a public interest. It has been observed that it is still the business of *792the State, in modern times, to defend individuals against one another and, though the proposition is a broad one, when considered With reference to penal legislation and all legislation intended for the promotion of the health, welfare and safety of the community, it is not without truth. It is evident, from the course of legislation framed for the purpose of áffording greater protection to the class of the employed, that the people of this State have compelled the employer to do many things which at common law he was not under obligation to do. Such legislation may be regarded as supplementing the common-law .rule of the employer’s responsibility and is illustrative of the policy of the State. Therefore it is, when an agreement is sought to be" enforced which suspends the operation of the common-law rule of liability and defeats the spirit of existing laws of the State, because tending to destroy the motive of the employer to be vigilant in the performance of his duty towards his employees, that it is the duty of the court to declare it to be invalid and to refuse its enforcement.”
In the Knisley case ■ the court was not. quite sure whether the assumption of risk was based upon a contract between the employer and employed or upon' a waiver of liability by the employed. Since then that matter has been set at rest by Dowd v. N. Y., O. & W. R. Co. (170 N. Y. 459), which holds that the assumption of risk is a matter of contract and should be pleaded as an affirmative defense. The situation then since the Knisley case has changed by the more recent determination that the assumption of risk is purely a matter of contract between the parties, and by the later-developed, public policy of'the State, which recognizes that it is against the interest of the State to permit any contract between the employer and the employed to destroy the motive of the employer to be vigilant in performing his duty to his employees.
The recent case of Graves v. Stickley Co. (125 App, Div. 132), in the fourth department, recognizes this change in the public policy of the State and considers the question as an open one whether an. employee can contract away, the benefits which the statutes intended to throw around him.
In Klein v. Garvey (94 App. Div. 183), by a unanimous court, the Appellate Division in the first department, in May, 1904, determined that in view of the violation of the statute it was a question *793for the jury and not for the court to determine whether the plaintiff knew and assumed the risk.
In Johnston v. Fargo (supra) the court (at pp. 382, 383) cites several cases in other jurisdictions sustaining the validity of the agreement, and then says that the great weight of authority sustains the view that the agreement is contrary to public policy, citing many cases out of the State, and then continues: “ In the Supreme Court of this State we find in addition to what has been held below
in this case, a similar view taken by the General Term of the second department in Simpson v. N. Y. Rubber Co. (80 Hun, 415).” It would seem that by quoting this case as authority for the proposition that such contracts are illegal, the Court of Appeals has recognized it as an authority upon the point decided by it, viz., that' where the violation of duty by the defendant is a criminal act he cannot shield himself by alleging that the defendant had assumed the risk of his crime.
Reference is made to the law of 1902 and to chapter 657 of the ■ Laws of 1906* as the more recent statutes intended for the protection of the employee, and as tending to show the policy of the State not to consider the employer and employee on an equality of contract, but rather that the employee must be protected from the dangers of the business which the employer reasonably ought to guard against. The latter statute is an amendment of the Railroad Law, and extends very materially the liability of the company to its employees for the negligence of its servants, and provides that no contract shall exempt or limit the liability of the corporation from the provisions of the act. The Employers’ Liability Act (Laws of 1902, chap. 600) creates a new cause of action by the 1st section in favor of an injured employee who files the notice required by the 2d section. The 3d section provides in general terms that the risks of the employment “ shall in all cases arising after this act takes effect” be considered as including only the risks inherent in the business after the employer has exercised due care in providing for the safety of his employees and has complied with the laws for the greater safety of such employees, and then continues: “In an action maintained for the recovery of damages for *794personal injuries to an employee received after this act takes effectf the fact that he continued in the service of the employer after the discovery of the danger shall not, as a matter of law, be considered as an assumption of the risk or as negligence contributing to the injury, but that the question .whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of injury, shall be one of fact, subject to the usual powers of the court in a proper case to set aside a. verdict rendered contrary to the evidence.
The statutes evidence the continued and progressive public policy of the State as recognizing the fact that the employee cannot take care of himself against the exactions of his employer, but that the State must protect him by legislation under its power to care for the health, safety and welfare of its people. This 3d section of the Employers’ Liability Act is intended, in my judgment, to define the rights of the employer and the employee in all negligent cases arising thereafter. Such is the express language of the statute and its fair meaning. It prevents in all negligence cases the direction of a verdict on the ground that the employee has assumed the risk, and leaves that question in' the first instance solely for the jury. This section may authorize the jury to determine, even in a case where the master has violated the criminal law, that the employee has assumed such risk. The amendment, to the Railroad Law, above referred to, would, however, seem to indicate that in those cases the defense of assumption of risk is never available.- But these questions, are not before us and are not determined.
I have fully discussed the application of section 3 of the Employers’ Liability Act to all Cases arising after the passage of the act, whether the notice provided for in the act is served or not, in a dissenting opinion in O'Neil v. Karr (110 App. Div. 571), and it is unnecessary to repeat here the reasons for such conclusion. That Case went back for a new trial and finally came before the Court of Appeals where the judgment dismissing the complaint was affirmed without opinion. (190 N. Y. 509.) We must assume, however, that that court found some other ground upon which the case necessarily turned, as it is not probable that it decided without opinion one of the most important questions under this statute and under the *795law of negligence of to-day, where this court was divided three to two with an opinion upon each side, if in the judgment of the court that question was one upon which the case depended. I think, therefore, that the question is still open, and that the Court of Appeals has not determined that section 3 of the Employers! Liability Act applies only to cases where notice has been served under that act.
I think we may properly refer to the changed public policy of the State since the Knisley case, as evidenced by the decisions of the courts and the various statutes upon the subject, as tending to show that that case is not a correct declaration of the present public policy of the State with reference to the violation by the. employer of the duties which the statute imposed upon him. But it is not necessary to refuse to follow that case, because, as we have seen, in that case the act omitted by the employer was not a criminal act, while in the case at bar the omitted act is declared criminal.
It follows from these considerations: (1) That at common law, irrespective of the Employers’ Liability Act, it was a question of fact to be determined by the jury in the first instance whether the plaintiff understood and assumed the risk of the unguarded machinery.
(2) That defendant, may not protect itself from the injury caused by its crime by an inference drawn by the court that the employee assumed the risk.
(3) That section 3 of the Employers’" Liability Act applies to all actions of negligence where the injury occurred after the passage of the act, and that it is improper in such a case for the court to dismiss the complaint upon its determination that the plaintiff assumed the risk. I, therefore, favor a reversal of the judgment.
Judgment affirmed, with costs.
Adding to Railroad Law (Laws of 1890, chap. 565), § 42a.—[Rep.