Hickey ex rel. Hickey v. Taaffe

39 N.Y. Sup. Ct. 7

• Court: New York Supreme Court
• Decided: February 15, 1884
• Status: Published

Opinion

Barnard, P. J.:

It is the general rule that an employe assumes the risks of the employment. (DeGraff v. N. T. C. and H. R. R. R. Co., 76 N. Y., 125.) If the master provides safe implements for the employment he is not liable for injuries sustained by the servant in the course of the employment. This rule governs cases where the means used are of the greatest power. The master is not required to furnish the safest machinery in use. He may select and provide such as he chooses, provided only they are well made, strong and safe. In the present case this rule has been changed by statute. By chapter 122 of the Laws of 1876, it is provided that if any person use a child under the age of sixteen years in any business dangerous to the life and limb of such child, he shall be guilty of a misdemeanor. It is also in the same act provided that if one who has the care and custody of a child shall willfully cause or permit the child to be placed in such a situation that its life may be endangered he shall be guilty of a misdemeanor. This act made a new rule of duty in respect to children under the age of sixteen. The plaintiff was fourteen years and four months 'old. She was employed by the defendant and at first was put at an employment suitable to children, then she was put to feed an ironing machine; her duty was to put collars and cuffs so that the machine should take them between large metal rollers which would, by great pressure, draw the article between the rollers and by heavy pressure complete the process of ironing. The articles were damp and starched and of necessity limber. v The girl had to take such an article and hold it near enough to the machine to be caught between the rollers. Upon the occasion in question her hand was drawn in between the rollers and destroyed. The duty imposed on the master is not answered solely by a criminal punishment, for a misdemeanor. (Knupfle v. Knickerbocker Ice Co., 84 N. Y., 488.) A violation of an ordinance of a city, restricting rate of speed, is there held to be some evidence of negligence, even if tlie ordinance provided a penalty for its violation. In Willy v. Mulledy (78 N. Y., 310) a private action was given under a law which provided that its violation should be a misdemeanor. The statute then imposed a rule of duty upon the defendant which will sustain an action in favor of any one injured by the violation of it. The negligence upon the part of defendant is absolutely made out if the occupation to which the girl was put fell within the law of 1876. That was a question for the jury; the machine is described minutely, its power is manifest and the manner of operating it fully described. Upon this part of the case the verdict is abundautly sustained. Great stress is put by the appellant upon the question of contributory negligence upon the part of the plaintiff. This question is one for the jury, and the age of the child is a fact to be duly considered. When it is improper to nonsuit the verdict will be upheld, and a nonsuit in this case would not be permitted. (McGovern v. N. Y. C. and H. R. R. R. Co., 67 N. Y., 417; Barry v. N. Y. C. and H. R. R. R. Co., 92 id., 289.) The judgment of a child of the plaintiff’s age is immature. The watchfulness which springs- from a sense of danger is not to be expected to the same extent as in persons of mature years. The statute meant to protect them from being exposed to danger. For these reasons the judgment should be affirmed, with costs.

DyKmaN and Pbatt, JJ., concurred. ,

Judgment and order denying new trial affirmed, with costs.