The plaintiff, an infant, 16 years of age, was injured by a revolving shaft in defendant’s factory, and sues for damages. In order to recover, she must satisfactorily establish, not only the defendant’s negligence, but her own freedom from fault. She now moves for leave to sue in forma pauperis. The application is opposed by the affidavits of four fellow servants,—working girls,—all of whom swear that the plaintiff, notwithstanding their remonstrance, voluntarily put herself on the shaft, saying she was going to have a swing. Unless the disinterested evidence of these four witnesses is arbitrarily disregarded, the maxim volenti non fit injuria applies, and there can be no recovery. Before granting an application to sue in forma pauperis, the court must be satisfied that the plaintiff has a good cause of action. Code, § 460. Unless so satisfied, it would be unjust to place all the machinery of the law at the disposal of one litigant to urge an attack upon another free of expense, and to protect such litigant against the payment of costs to the one pursued, if the pursuit proved disastrous. The plaintiff in such a case, as Lord Bacon says, would become rather “able to vex than unable to sue.” The rule had its origin in England in the time of Henry VIL, to prevent injustice to the poor by oppressors who were denying them their clear legal rights. The order should not be granted, except in a reasonably clear case. Harris v. Insurance Co., (Sup.) 13 N. Y. Supp. 718; Moore v. Cooley, 2 Hill, 412; Brown v. Story, 1 Paige, 588; Isnard v. Cazeaux, Id. 40; Downs v. Farley, 12 Civil Proc. R. 119; Glasberg v. Railroad Co., Id. 50. While the courts are adverse to trying the merits of a controversy upon affidavits, no court could conscientiously hold, in the face of the evidence produced by the defendant, that it was judicially satisfied that the plaintiff has a good cause of action.
Motion denied, without costs.