Opinion
December, 1913.
James I. Cuff, for appellant.
Henry B. Mitchell, for respondent.
This is an action to recover damages for personal injuries sustained by the plaintiff, an infant, between the age of fourteen and sixteen years, while employed in the defendant's factory. It was proved that the plaintiff entered the defendant's employ when he was thirteen and one-half years old. After working for a few months as an errand boy he was put to work as a glass cutter and later on as a bender of glass, at which occupation he was injured by the dropping of a piece of hot glass into his trousers, which severely burned his thigh, leg and foot, and confined him to bed for several months. There was some evidence of negligence in the defendant in failing to warn the plaintiff of the dangers of glass bending and in failing to instruct him as to the proper manner in which to perform the work, but the evidence upon these points was slight and inconclusive. The main reliance of the plaintiff was the negligence of the defendant in employing an infant between fourteen and sixteen years of age to do work in a factory in violation of section 70 of the Labor Law, which prohibits entirely the employment of an infant under fourteen in a factory and prohibits the employment of one between the age of fourteen and sixteen unless a certificate of his fitness for the work, as required by section 71, has been filed in the office of the employer.
It has been repeatedly held that the employment of an infant under fourteen, in violation of the statute, establishes a prima facie case of negligence in the employer, for the reason that the statute creates a presumption that a child of such years does not possess the judgment, discretion, care and caution necessary for engagement in such an avocation ( Marino v. Lehmaier, 173 N.Y. 530), and that the same presumption for unfitness for such work and negligence of the employer prevails in the case of an infant between fourteen and sixteen years of age, unless the certificate showing his fitness has been filed in accordance with the statutes. Dragotto v. Plunkett, 113 A.D. 648; Sitts v. Waiontha Knitting Co., 94 id. 38. The plaintiff established beyond doubt that he was fourteen years of age at the time of the accident and that no such certificate had been filed, nor had he been examined for the purpose of obtaining such a certificate. The only evidence which the defendant adduced to rebut the presumption of negligence thus created was to the effect that both the plaintiff and the plaintiff's older brother stated to its officers at the time the plaintiff was employed that he was over the age of sixteen and that the plaintiff appeared to be over that age.
It has been held by the Court of Appeals that an employer cannot be charged with negligence under these statutes if he used proper vigilance in ascertaining the facts and had reasonable grounds for believing that the infant was over the age of sixteen ( Koester v. Rochester Candy Works, 194 N.Y. 92), and in the case at bar it was for the jury to determine from the evidence whether the defendant was justified in his alleged belief as to the age of the plaintiff. Kircher v. Iron Clad Mfg. Co., 134 A.D. 144; affd., without opinion, 200 N.Y. 587. Upon this question the defendant's attorney requested the court to charge the jury, that "if the plaintiff's brother falsely stated the plaintiff's age to the defendant or its representatives at the time the plaintiff was employed and if the plaintiff was present and led him to believe that the plaintiff was over sixteen years of age, and if they were justified in that belief, then they were not guilty of negligence in employing him." This request was almost in the exact language of the request to charge under review in Koester v. Rochester Candy Works, 194 N.Y. 92, a refusal of which, under similar circumstances, was held to be ground for reversal. The defendant was entitled to have the jury so instructed and I do not find that anywhere in the charge of the court this question was properly presented. This was the only closely contested issue in the case and was undoubtedly controlling upon the minds of the jury.
The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
LEHMAN and WHITAKER, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.