Gamble v. Hine

2 N.Y.S. 778, 19 N.Y. St. Rep. 874, 50 Hun 604, 1888 N.Y. Misc. LEXIS 840

Opinion

Macomber, J.

When the plaintiff received the personal injuries which - form the basis of this action he was a lad of the age of 14 years and 9 months. It was the duty of the defendant, in employing a boy of such tender years to-work upon dangerous machinery, to give him full and explicit instructions; not only to enable him to master the mechanism, but also to enable him to avoid injuries by unnecessarily exposing himself to danger. Had the defendant thus instructed him he would have discharged the whole of the obligation! which he, as employer, owed to the employe. The plaintiff was of sufficient, years, manift stly, to have understood and appreciated fully, not only tfie dangerous character of the business in which he was employed, but also of sufficient intelligence to understand and apply in practice the admonitions of his employer. Hence it was of the primest importance in the trial of the action that the court and jury should be instructed by evidence upon the question whether the defendant had placed befóre the boy the proper facts to have enabled him to appreciate the dangerous business in -which he was employed.. Though the pressure upon the treadle of the machine, while the operator’s hand', was beneath the weight, would to an experienced eye seem to be apparently-dangerous, it did not necessarily convey to a boy of these tender years the-admonition which it was the duty of the employer to make to him. Had the-plaintiff been a person of experience and of mature years, the case before us. would be essentially different, and the employer would doubtless be exempt from liability. In the evidence it is shown on the one hand that the boy was. put at work blindly, and without any instructions as to the dangerous char- ' acter of the machinery, and of the means of avoiding the danger, and was left-to feel his own way, without instruction or suggestion as to the danger or how to protect himself against it, while the evidence in behalf of the defendant, particularly of his foreman and of two other persons, was to the effect-that the plaintiff was given specific instructions, not only how to work the-machine, but also as to the danger involved. This presented a case of clear conflict of testimony which the court was in duty bound to submit to the-jury. After an examination of the evidence we do not feel justified in saying that the jury has rendered their verdict without evidence, or against the-weight of the evidence,"taking the interest of the parties and the circumstances of the case into account. The judgment should be affirmed, with costs.-

Van Brunt, P. J., and Bartlett, JJ„ concur.