This action is brought by the guardian ad litem of an infant to recover damages for personal injuries.
The infant, at that time a child thirteen years and ten months of age, was employed by the defendants to operate an elevator in an apartment house. On the morning of the accident he was directed by the defendants’ superintendent to take a window cleaner up in the elevator. After the boy had let the window cleaner off he stepped from the elevator into the hall, and on attempting to return to the elevator he fell down the shaft and sustained serious injuries. Evidence was given tending to show that the elevator was defective in that it on many occasions when empty would ascend the shaft without the power having been applied. It was shown that there was no light in the elevator and from the arrangement of the window in the hall that little or no light would be admitted to the shaft. The court submitted to the jury the question of the defendants’ negligence and also charged *381the jury that the burden rested upon the plaintiff to prove that the child was free from contributory negligence. There was no evidence offered on the trial on behalf of the defendants,' the defendants having moved at the close of the plaintiff’s case to dismiss the complaint upon the ground that there was no evidence of negligence on the part of the defendants and no evidence of freedom from contributory negligence on the part of the plaintiff, and on the denial of the motion rested, without offering evidence. Upon the evidence, if the finding of the jury was that the injury was not sustained by reason of the negligence of the defendants, it would clearly be contrary to the weight of the evidence. The question presented upon this appeal, therefore, is whether under the evidence in this case the infant could be chargeable with negligence that contributed to the injury.
By section 93 of the Labor Law it is provided: “ No child under the age of sixteen years shall be employed or permitted to have the care, custody or management of or to operate an elevator either for freight or passengers.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 93, as amd. by Laws of 1913, chap. 464.)
The purpose of this statute is manifest, and it is twofold: (1) For the protection of the child; (2) for the protection of those Who have lawful occasion to ride upon the elevator. It is recognized that a child “ does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous avocation.” (Marino v. Lehmaier, 173 N. Y. 530, 534.)
The question is not left for judicial determination whether the individual child had sufficient capacity to safely engage in the occupation. . The Legislature has fixed a definite age limit below which no child shall be employed, thus, in effect, saying that no child below that age shall be presumed to have “ the judgment, discretion, care and caution necessary ” for such employment. A violation of the statute is a misdemeanor and punishable as such. (Penal Law, § 1275, as amd. by Laws of 1913, chap. 349.) But the law imposes another liability upon the violator, if any one is injured; the violation of the statute becomes evidence of negligence and unless rebutted is sufficient in itself to sustain a recovery of damages. How can this *382evidence be met? Certainly not by showing that the child under the age of sixteen possessed the skill, judgment, discretion and care of an adult, and that, therefore, the master was justified in employing him. The Court of Appeals in Koester v. Rochester Candy Works (194 N. Y. 92, 95) has indicated: “ Under this doctrine the gist of civil liability is the negligence of the master in employing a person of such tender years that the Legislature has forbidden his employment. Therefore, if the employer, in the exercise of proper vigilance and due caution, is led to believe that the employee is above the statutory age, he cannot well be charged with negligence in employing an infant, whether such belief would be available as a defense in a criminal prosecution or not.” Such being the law, can it be that the displaying by the child of the very lack of judgment, discretion and care that the child was presumed to have and which led the Legislature to prohibit his employment will defeat his right to recovery when he is injured in the course of the employment? Can the employer shield himself behind his own wrongdoing and escape the natural and anticipated consequence of his act? In my opinion he cannot. Mr. Justice Ingraham correctly stated the law in Gallenkamp v. Garvin Machine Co. (91 App. Div. 141, adopted by the Court of Appeals, 179 N. Y. 588): “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.” In Marino v. Lehmaier (supra) Judge Haight said: “ * * * To our minds the statute, in effect, declares that 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.”
In my opinion the proper understanding of the use of the words “ as a matter of law ” in the opinion is- not to impose a limitation on the power of the judge at trial to dispose of the question and nonsuit the plaintiff and still allow the jury to pass upon the question as one of fact. As I understand the *383opinion it means that the Legislature by law has eliminated those questions from the case. The case of Bachmann v. Little (152 App. Div. 811) is not an authority to the contrary. In that case the machine was not one of those upon which the employment of children was expressly prohibited by the statute. Therefore it was a question of fact whether the injury was sustained by reason of the inherently dangerous character or the negligent operation of the machine. Stenson v. Flick Construction Co. (146 App. Div. 66) turns upon the knowledge of the employer and the misrepresentation as to the age of the infant. The child only lacked a few months of being sixteen years of age, and his mother induced or acquiesced in the employment. Also the statute in that case prohibited the employment of a child “ apparently under the age of sixteen years.” (Penal Code, § 289; re-enacted by Penal Law, § 483.) In the instant case no such questions are presented. There is no claim that the defendants’ superintendent did not know the age of the child, and the mother forbade the employment; and in this case the statute prohibits the employment of a child under sixteen years of age.
The Court of Appeals has never had squarely before it the effect of the statute upon the liability of a child of the prohibited age being chargeable with contributory negligence. It has been determined in accord with my contention in the courts of last resort in several other States. (American Car Company v. Armentraut, 214 Ill. 509; Stehle v. Jaeger Automatic Mach. Co., 225 Penn. St. 348; De Soto Coal Mining & Development Co. v. Hill, 179 Ala. 186; Casperson v. Michaels, 142 Ky. 314.) That court has said, before the statute was enacted: “ If a person is so young that even after full instructions he wholly fails to understand them and does not appreciate the dangers arising from a want of care, then he is too young for such employment and the employer puts or keeps him at such work at his own risk.” (Hickey v. Taaffe, 105 N. Y. 26, 36.) In the instant case the statute has fixed the age under which a person is so young as not to appreciate the danger arising from a want of care, and the defendants should be held to have assumed the risk of such employment.
The charge of the learned trial justice that the burden of proving freedom from contributory negligence was upon the *384plaintiff was erroneous, and the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Shearn, J., concurred.
Judgment affirmed, with costs.