Laughlin, J. :
This action is brought to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The action is predicated upon a violation of section 81 of the Labor Law (Laws of 1897, chap. 415* as amd. by Laws of 1899, chap. 192), which provides that “ children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machines of any kind.” The defendant was a manufacturer of tools and machinery, and its plant was in the city of New York. The building consisted of eight floors. A machine known as a conveyor, operated by mechanical power, was used by the defendant for the purpose of carrying tools to and from the different floors. It Vas constructed in a shaft extending from, the bottom to the top of the building. .The walls of the shaft were three inches in thickness, consisting of steel laths, with plaster upon either side. The conveyor consisted of endless chains, passing over sprocket wheels, eighteen inches in diameter, located at the top and basement of the building, with pan-shaped metallic shelves about three feet in length attached to and suspended-between the chains at intervals of about [143] thirteen feet. The conveyor was in constant motion during bush ness hours. There were two openings in the shaft at each floor,, one opposite the ascending pans and the other opposite those-descending, for the purpose of putting on and taking off tools. These openings were about eighteen inches above the floor, and. were three feet wide and forty-six inches high; and had doors by which they could be closed when not in use. The conveyor moved-at the rate of about one foot per second.
On or about the 3d day of June, 1902, the plaintiff applied to the-defendant for employment. He was accompanied by his father, who,, in answer to an inquiry by the superintendent as to the boy’s age,, said he had “ just turned fifteen,” which was the fact. According to-the plaintiff’s testimony, the superintendent refused to employ him unless a certificate was obtained from the board of health to the effect-that he was sixteen years of age; and upon a misrepresentation of the-facts such a certificate was obtained and presented and the plaintiff was employed. For seven days he worked in the tool room on the-third floor under one Herman Lehr. On the eighth day Lehrdirected him to attend the conveyor on the fourth floor on account of the absence of the boy who regularly attended it. This was his first experience at that work; and he had received no warning as to the danger or instructions as to the safe method of performing the duties thus assigned. There were from fifty to seventy-five mechanics-working on that floor. After plaintiff had been working at the conveyor four or five hours, one of the employees came over with, five tools to be sent to another floor and requested plaintiff to “ hurry-up and get -these checks for these tools.” Their system was to have-slips accompany the tools to be receipted and returned. The plaintiff testified that he immediately filled out such a slip and proceeded to put the tools upon one of the pans of the descending conveyor that two of the tools, just as he got them in the pan, fell over the-side, and “ I made a grab for them to catch them, but they were too-, far gone, and just then the pan came down and caught my head between the pan and the landing.” It appears that there was, a space of about six inches between the edge of the pan and the side, of the shaft toward the plaintiff. The plaintiff admitted that he knew that if he put his héad far enough into the opening to be within range of these passing pans he was liable to receive injuries..
[144] The respondent seeks to sustain the judgment upon . three grounds (1) That this was not a danger,ous machine; (2) that the plaintiff was neither Operating nor assisting in operating it, and (3) that the plaintiff was guilty of contributory negligence., as matter of'law..'
I think it cannot be said as matter of law that this was not a dangerous machine within the contemplation of the statute. It was a mechanical contrivance in constant motion and propelled by practically irresistible mechanical power. The plaintiff was obliged to remove the tools from a pan while it was passing this opening of less than four feet, which would take only about four seconds, and likewise he was obliged to load a pan while it was passing the same distance. Although the conveyor did not move with great rapidity, yet it is manifest that the work was attended with danger, and the safety of the operator required that he should be of sufficiently mature judgment to keep his mind constantly upon the work.' In the ■ case of Hindle v. Birtwistle (1 Q. B. [1897] 192), in sustaining a conviction'for a violation of the Factory and Workshop Act of England for neglect to properly guard dangerous machinery where the question arose as to whether the machinery was dangerous, the court said, “ machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection.” ■
I am also of .the opinion that the plaintiff was assisting in the operation of this machine. Strictly speaking, perhaps the person who applied the power to set the machinery in motion was the operator; but the mere operation of the machine without the agency of the employees upon the different floors would have been fruitless. It was intended as a time-saving device, and to render its operation effectual required the assistance of employees upon the different floors. Those thus engaged were clearly, I think, assisting, at least, in operating the machine within the fair intent and meaning of the statute.
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Laughlin, J. :
This action is brought to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The action is predicated upon a violation of section 81 of the Labor Law (Laws of 1897, chap. 415* as amd. by Laws of 1899, chap. 192), which provides that “ children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machines of any kind.” The defendant was a manufacturer of tools and machinery, and its plant was in the city of New York. The building consisted of eight floors. A machine known as a conveyor, operated by mechanical power, was used by the defendant for the purpose of carrying tools to and from the different floors. It Vas constructed in a shaft extending from, the bottom to the top of the building. .The walls of the shaft were three inches in thickness, consisting of steel laths, with plaster upon either side. The conveyor consisted of endless chains, passing over sprocket wheels, eighteen inches in diameter, located at the top and basement of the building, with pan-shaped metallic shelves about three feet in length attached to and suspended-between the chains at intervals of about [143] thirteen feet. The conveyor was in constant motion during bush ness hours. There were two openings in the shaft at each floor,, one opposite the ascending pans and the other opposite those-descending, for the purpose of putting on and taking off tools. These openings were about eighteen inches above the floor, and. were three feet wide and forty-six inches high; and had doors by which they could be closed when not in use. The conveyor moved-at the rate of about one foot per second.
On or about the 3d day of June, 1902, the plaintiff applied to the-defendant for employment. He was accompanied by his father, who,, in answer to an inquiry by the superintendent as to the boy’s age,, said he had “ just turned fifteen,” which was the fact. According to-the plaintiff’s testimony, the superintendent refused to employ him unless a certificate was obtained from the board of health to the effect-that he was sixteen years of age; and upon a misrepresentation of the-facts such a certificate was obtained and presented and the plaintiff was employed. For seven days he worked in the tool room on the-third floor under one Herman Lehr. On the eighth day Lehrdirected him to attend the conveyor on the fourth floor on account of the absence of the boy who regularly attended it. This was his first experience at that work; and he had received no warning as to the danger or instructions as to the safe method of performing the duties thus assigned. There were from fifty to seventy-five mechanics-working on that floor. After plaintiff had been working at the conveyor four or five hours, one of the employees came over with, five tools to be sent to another floor and requested plaintiff to “ hurry-up and get -these checks for these tools.” Their system was to have-slips accompany the tools to be receipted and returned. The plaintiff testified that he immediately filled out such a slip and proceeded to put the tools upon one of the pans of the descending conveyor that two of the tools, just as he got them in the pan, fell over the-side, and “ I made a grab for them to catch them, but they were too-, far gone, and just then the pan came down and caught my head between the pan and the landing.” It appears that there was, a space of about six inches between the edge of the pan and the side, of the shaft toward the plaintiff. The plaintiff admitted that he knew that if he put his héad far enough into the opening to be within range of these passing pans he was liable to receive injuries..
[144] The respondent seeks to sustain the judgment upon . three grounds (1) That this was not a danger,ous machine; (2) that the plaintiff was neither Operating nor assisting in operating it, and (3) that the plaintiff was guilty of contributory negligence., as matter of'law..'
I think it cannot be said as matter of law that this was not a dangerous machine within the contemplation of the statute. It was a mechanical contrivance in constant motion and propelled by practically irresistible mechanical power. The plaintiff was obliged to remove the tools from a pan while it was passing this opening of less than four feet, which would take only about four seconds, and likewise he was obliged to load a pan while it was passing the same distance. Although the conveyor did not move with great rapidity, yet it is manifest that the work was attended with danger, and the safety of the operator required that he should be of sufficiently mature judgment to keep his mind constantly upon the work.' In the ■ case of Hindle v. Birtwistle (1 Q. B. [1897] 192), in sustaining a conviction'for a violation of the Factory and Workshop Act of England for neglect to properly guard dangerous machinery where the question arose as to whether the machinery was dangerous, the court said, “ machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection.” ■
I am also of .the opinion that the plaintiff was assisting in the operation of this machine. Strictly speaking, perhaps the person who applied the power to set the machinery in motion was the operator; but the mere operation of the machine without the agency of the employees upon the different floors would have been fruitless. It was intended as a time-saving device, and to render its operation effectual required the assistance of employees upon the different floors. Those thus engaged were clearly, I think, assisting, at least, in operating the machine within the fair intent and meaning of the statute.
The question of contributory negligence was, in my opinion, one for the consideration of the jury. In the case "of Marino v. Lehmaier (173 N. Y. 530), where a boy, thirteen years of age, employed in a factory in violation of another provision of the Labor Law, prohibiting the employment of children under the age of fourteen [145] years in factories, was injured by the starting of a cog wheel while he was cleaning a press, the Court of Appeals held that the mere employment of the plaintiff in violation of the statute was evidence of negligence on the part of the defendant sufficient to take the case to the jury and that the statute amounted to a legislative declaration that children under fourteen years of age. in accepting employment and performing duties assigned to them in violation of the law were not of sufficient age and discretion to be deemed guilty of contributory negligence as matter of law. The prohibition against the employment of children under sixteen years of age in the operation or assisting in the operation of dangerous machinery requires the same construction. The Legislature, although it saw fit to permit the employment of children over fourteen and under sixteen years of age in factories, deemed it necessary to prohibit their employment in operating or assisting in the operation of dangerous machines. It is evident that the Legislature appreciated that children between those ages are apt to be thoughtless and absent-minded and to have their attention diverted from work, and, therefore, are liable to injury if working on dangerous machines. The effect of the Court of Appeals decision in the Marino case is that contributory negligence even in such case relieves the employer of liability; but that it is a question for the jury whether or not the infant was guilty of contributory negligence. Doubtless if it appeared that the plaintiff, at the time realizing cmd appreciating the dcmger, heedlessly thrust his head in the path of the descending pans, it would be contributory negligence as matter of law, but that is not this case. The plaintiff was injured while attempting as best he could to perform the duties assigned to him. It was for the jury to say whether, at the time, he appreciated and realized the dcmger, and, if so, he would be guilty of contributory negligence; but, if not, they would be justified in finding freedom from contributory negligence on his part. The case of Monzi v. Friedline (33 App. Div . 217) was decided long before the decision of the Court of Appeals in the Marino case, and it is unnecessaiy to decide now whether it is affected by the latter, for there the plaintiff was seventeen years of age, and while the decision went upon the assumption that greasing a cable to an elevator, which he was operating, was [146] cleaning machinery and within the prohibition of the statute forbidding the employment of males under eighteen years to clean machinery while in motion, yet there the plaintiff had control of the motion of the elevator and cable; and the motion which caused the injury was his own act, and he was deemed clearly negligent as matter of law.
It follows, therefore, that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event,.
Van Brunt, P. J., and O’Brien, J., concurred; Ingraham and MoLaughlin, JJ., dissented.