Maeshall, J.
Tbe statute claimed to bare been violated is as follows:
“No child under the age of sixteen years shall be employed in adjusting any belt or in oiling or assisting in oiling, wiping or cleaning any machinery when the same is in motion or in operating or assisting in operating any circular or band .saw, wood shaper, wood jointer, planer, sandpaper or wood polishing machine ... or in any other employment dangerous to life or limb. . .'' Sec. 1728a, Stats. (Laws of 1909, ch. 338).
Any one “who” shall violate “any of the provisions of this act” “shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense,” or be imprisoned “in the county jail not longer than thirty days.” Sec. 1728h, Stats. (Laws of 1909, ch. 338).
By another provision, corporations are made liable the same 'as natural persons and a method provided for enforcing such liability, and by a further provision parents and guardians are made likewise liable for suffering or permitting any such violation.
It must be conceded that defendant acted in defiance of the written law in employing plaintiff and that if such circumstance rendered the defense of contributory negligence unavailing, as the trial court decided, the judgment must be affirmed.
As suggested on the oral argument, it seems that the logic of Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, might well rule this case in favor of respondent. It is difficult to see why the principle there stated and applied does not ex[478]*478actly fit the situation now presented. The court then dealt with a law designed to conserve child life and safety. To that end, such law prohibited the doing of a particular act which experience had taught to be dangerous, particularly, to children. The legislature deemed the object of the law so important that any violation thereof was made punishable by imprisonment in the county jail, not exceeding six months, or by both fine and imprisonment. The enactment in question belongs to the same class of police regulations.
The court distinguished the action before it from one for damages caused by ordinary negligence, and proceeded to a final determination on lines involving this as a principle: If a person purposely does an act in violation of a duty created by law as regards the personal safety of others, and the policy of the written law is that the prevention of such violations is so important that a person guilty thereof should in addition to civil liability to the injured person be held criminally liable as for a serious offense against the public, the act should be regarded as done regardless of human life or bodily injury and in case of damage happening to one of those whose safety the law was designed to conserve, he may successfully maintain an action against the guilty party to recover for his loss regardless of contributory negligence on his part; thus classing the act of the wrongdoer with ordinary acts of gross negligence.
The principle thus stated is in harmony with general public policy. Every one is presumed to know the law, even though as matter of fact he may be ignorant of it. There is no excuse that can be put forward for a violation of criminal law. There may be palliations to be considered in fixing the punishment, where the enactment expressly or by necessary implication so provides, but punishment cannot be escaped, entirely, upon the ground of ignorance or any other ground. Why then should contributory negligence be a defense in a civil action for damages, as in this case ? To allow it would [479]*479fail to recognize that the law is aimed at conserving tbe public as well as private interests. Why should a violation of a law designed, as in this case, — a law which with a violation of it, creates criminal as well as civil liability, — be regarded as otherwise than, at least, constructive disregard of whether the act cause danger to lives of the persons the law was specially designed to safeguard? No good reason is perceived why not, or why such a violation should not be classed with gross negligence as suggested in Pizzo v. Wiemann, supra, and the general rule applied that, in case of a wrong of such character, contributory negligence of the injured person is immaterial, as regards liability to repair the loss.
What has been said, it is considered, is enough to justify the ruling complained of in this case, but if that were not so, we agree with counsel for respondent, that the law in question, in all essential particulars, was adopted from the state of Illinois after the highest tribunal thereof had construed it as not admitting of the defense of assumption of the risk or contributory negligence in an action like this, and it must be assumed that, in adopting the law, the legislature intended to Lake its foreign construction. Our statute is so very like that of Illinois, as it has existed since 1897, Hurd’s Statutes Illinois, 1897, ch. 48, sec. 33, as to lead to a conclusion that the purpose of our legislature was to incorporate the system of that state for the safety of children into our own.
Some time prior to the last legislation here in 1909, the Illinois court very emphatically decided that contributory negligence was not a defense in a case of this sort. American C. & F. Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766. A distinction was made between an employment which is unlawful and one which is lawful but there is a failure to do some prescribed act to conserve personal safety in the course of the employment. That has been followed by other decisions, all in harmony with the initial adjudication.
If neither of the reasons already given should be regarded [480]*480as ruling this case, the most that could be claimed in favor of appellant is, that there is a conflict of authority elsewhere with the Weight of it in favor of the position maintained by counsel for respondent — the opposing adjudications going generally upon the ground that, contributory negligence, where not expressly or by necessary inference abrogated by written law, is always a defense to an action based on negligence, — and that this court should incline to the side according the greatest dignity to legislative efforts to conserve the security of children, against oven being employed by their consent and consent of their parents or guardians, where they will be subjected to serious dangers on account of inadvertently receiving bodily injuries, which evince such supreme care in respect to the matter as to make the employment, of itself, criminal.
As, perhaps, already sufficiently indicated, the contention that contributory negligence has, uniformly, been held by this court to be a defense in an action based on negligence, and therefore the decision below is wrong, is beside the case. It fails to appreciate that there can be no contributory negligence, strictly so called, except in cases of concurrent inadvertence, denominated ordinary negligence or want of ordinary care. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446; Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273; Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265. There must be inadvertence of the defendant or there can be no contributory negligence of the plaintiff.
Free access — add to your briefcase to read the full text and ask questions with AI
Maeshall, J.
Tbe statute claimed to bare been violated is as follows:
“No child under the age of sixteen years shall be employed in adjusting any belt or in oiling or assisting in oiling, wiping or cleaning any machinery when the same is in motion or in operating or assisting in operating any circular or band .saw, wood shaper, wood jointer, planer, sandpaper or wood polishing machine ... or in any other employment dangerous to life or limb. . .'' Sec. 1728a, Stats. (Laws of 1909, ch. 338).
Any one “who” shall violate “any of the provisions of this act” “shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense,” or be imprisoned “in the county jail not longer than thirty days.” Sec. 1728h, Stats. (Laws of 1909, ch. 338).
By another provision, corporations are made liable the same 'as natural persons and a method provided for enforcing such liability, and by a further provision parents and guardians are made likewise liable for suffering or permitting any such violation.
It must be conceded that defendant acted in defiance of the written law in employing plaintiff and that if such circumstance rendered the defense of contributory negligence unavailing, as the trial court decided, the judgment must be affirmed.
As suggested on the oral argument, it seems that the logic of Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, might well rule this case in favor of respondent. It is difficult to see why the principle there stated and applied does not ex[478]*478actly fit the situation now presented. The court then dealt with a law designed to conserve child life and safety. To that end, such law prohibited the doing of a particular act which experience had taught to be dangerous, particularly, to children. The legislature deemed the object of the law so important that any violation thereof was made punishable by imprisonment in the county jail, not exceeding six months, or by both fine and imprisonment. The enactment in question belongs to the same class of police regulations.
The court distinguished the action before it from one for damages caused by ordinary negligence, and proceeded to a final determination on lines involving this as a principle: If a person purposely does an act in violation of a duty created by law as regards the personal safety of others, and the policy of the written law is that the prevention of such violations is so important that a person guilty thereof should in addition to civil liability to the injured person be held criminally liable as for a serious offense against the public, the act should be regarded as done regardless of human life or bodily injury and in case of damage happening to one of those whose safety the law was designed to conserve, he may successfully maintain an action against the guilty party to recover for his loss regardless of contributory negligence on his part; thus classing the act of the wrongdoer with ordinary acts of gross negligence.
The principle thus stated is in harmony with general public policy. Every one is presumed to know the law, even though as matter of fact he may be ignorant of it. There is no excuse that can be put forward for a violation of criminal law. There may be palliations to be considered in fixing the punishment, where the enactment expressly or by necessary implication so provides, but punishment cannot be escaped, entirely, upon the ground of ignorance or any other ground. Why then should contributory negligence be a defense in a civil action for damages, as in this case ? To allow it would [479]*479fail to recognize that the law is aimed at conserving tbe public as well as private interests. Why should a violation of a law designed, as in this case, — a law which with a violation of it, creates criminal as well as civil liability, — be regarded as otherwise than, at least, constructive disregard of whether the act cause danger to lives of the persons the law was specially designed to safeguard? No good reason is perceived why not, or why such a violation should not be classed with gross negligence as suggested in Pizzo v. Wiemann, supra, and the general rule applied that, in case of a wrong of such character, contributory negligence of the injured person is immaterial, as regards liability to repair the loss.
What has been said, it is considered, is enough to justify the ruling complained of in this case, but if that were not so, we agree with counsel for respondent, that the law in question, in all essential particulars, was adopted from the state of Illinois after the highest tribunal thereof had construed it as not admitting of the defense of assumption of the risk or contributory negligence in an action like this, and it must be assumed that, in adopting the law, the legislature intended to Lake its foreign construction. Our statute is so very like that of Illinois, as it has existed since 1897, Hurd’s Statutes Illinois, 1897, ch. 48, sec. 33, as to lead to a conclusion that the purpose of our legislature was to incorporate the system of that state for the safety of children into our own.
Some time prior to the last legislation here in 1909, the Illinois court very emphatically decided that contributory negligence was not a defense in a case of this sort. American C. & F. Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766. A distinction was made between an employment which is unlawful and one which is lawful but there is a failure to do some prescribed act to conserve personal safety in the course of the employment. That has been followed by other decisions, all in harmony with the initial adjudication.
If neither of the reasons already given should be regarded [480]*480as ruling this case, the most that could be claimed in favor of appellant is, that there is a conflict of authority elsewhere with the Weight of it in favor of the position maintained by counsel for respondent — the opposing adjudications going generally upon the ground that, contributory negligence, where not expressly or by necessary inference abrogated by written law, is always a defense to an action based on negligence, — and that this court should incline to the side according the greatest dignity to legislative efforts to conserve the security of children, against oven being employed by their consent and consent of their parents or guardians, where they will be subjected to serious dangers on account of inadvertently receiving bodily injuries, which evince such supreme care in respect to the matter as to make the employment, of itself, criminal.
As, perhaps, already sufficiently indicated, the contention that contributory negligence has, uniformly, been held by this court to be a defense in an action based on negligence, and therefore the decision below is wrong, is beside the case. It fails to appreciate that there can be no contributory negligence, strictly so called, except in cases of concurrent inadvertence, denominated ordinary negligence or want of ordinary care. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446; Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273; Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265. There must be inadvertence of the defendant or there can be no contributory negligence of the plaintiff. Where the fault of the person causing the in-jtrry is characterized by advertence, denominated in our system, gross negligence, — wrong having the element of actual intent to injure or such disregard of consequences as to be equivalent thereto, and so, called constructive intent, — the contributory fault of the person injured is not, properly, eharaeterizable as contributory negligence, and the general rule as to efficiency of such fault to save the wrongdoer from the consequences of his act has no application. True, it is [481]*481often said in such, cases, contributory negligence is not a defense, but logically there is no such negligence possible, as the term is ordinarily understood in the classification of the degrees of negligence as maintained here almost from the beginning of our system of jurisprudence. Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265.
So it will be seen that, it is somewhat of a misnomer to speak of fault of the plaintiff in this case as contributory negligence. Manifestly there was no negligence on the part of appellant, and could have been none, strictly speaking, falling within the class of faults regarded as mere want of ordinary care and denominated ordinary negligence. The fault was advertent in character. There was an actual or constructive intent to violate the law, equivalent, as indicated, to a constructive intent to cause the consequences which the law was designed to prevent.
It may be the dividing line is somewhat shadowy between those failures to guard dangerous machinery, where required to do so by the written law, commonly treated as inadvertence, ■and the fault dealt with here, but it is believed that there is a logical distinction. Courts elsewhere, particularly the Illinois court, ground their decisions on such distinction, in that one is a violation of a criminal law and the other of a mere regulation penalized for the benefit of the person injured rather than on the fact that the violation of a prohibitory criminal law has none of the characteristics of inadvertence admitting of concurrence of faults of that nature. That may well be attributed to the fact that negligent acts, in the broad aspect, are not classified there as they are here. So the Illinois court makes the violation of the criminal prohibitory law the significant thing, while here such a violation is regarded as of the same serious character and so, logically, outside the field where contributory fault would otherwise be contributory negligence and preclude a recovery.
By the Court. — The judgment is affirmed.