
    Emma Regling, by Hugo Regling, Her Guardian ad litem, Respondent, v. James M. Lehmaier et al., Appellants.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Master and servant — Master’s liability for injuries to servant — Actions — Sufficiency of evidence — Negligence on part of master; Instructions — Exception.
    In an action to recover damages for personal injuries, the employment of a girl under sixteen years of age, the age required by the statute (L. 1899, ch. 192, § 81), to operate a dangerous machine is evidence of negligence to be considered by the jury in connection with the other facts and the extent of her assumption of the risk.
    In such a case, the act of the foreman which led to the injury ir6 telling plaintiff to use her hand, instead of the stick provided by the employer for that purpose, to loosen the cups made by the machine upon which she was working would not, as matter of law, absolve the employer from liability; and her obedience to the direction tended to establish her freedom from contributory negligence.
    Evidence having been received tending to show that plaintiff, at the time of her employment, had represented her age to be sixteen years, the court charged the jury that such fact alone would not excuse the defendants, of whom something more and further was required for compliance with the statute; held that the charge was not
    ■ erroneous, so far as it related to defendants’ violation of the statute, and that an exception to that part of the charge which said the representation did not excuse the defendants was insufficient to challenge its correctness in failing to leave the question of negligence to the jury in the light of the representation, if found by them to have been made, in connection with all the circumstances of the case.
    Appeal by the defendants from a judgment of the City Court of the city of Hew York rendered in favor of the plaintiff upon a verdict.
    Fred. E. Fish el, for appellants.
    August P. Wagener, for respondent.
   Bischoff, J.

The plaintiff was injured when operating a machine in the defendants’ factory, at a time when she was under the age of sixteen years; and the action proceeded upon the theory of negligence arising through the défendants’ violation of the statute (Laws of 1899, chap. 192, § 81) relative to the employment of children in the operation of dangerous" machines, as well as through the alleged failure of these employers to provide a safe place of work.

The machine was a device for stamping or shaping tin cups, was operated by steam and consisted of cylinders, each fitted with a plunger which pressed the tin discs (supplied automatically) upon a die .affixed to the table which formed the base of the machine. Sticks were provided for the purpose of enabling the operator to loosen such of the tin discs as might become wedged; and there were two control levers on the table, one near the plaintiff, to stop the machine, and the other, to start as well as to stop it, at the place occupied by another operator.

From the plaintiff’s testimony, it appeared that, at a time some two weeks prior to the accident, she found that the machine would start and stop itself, without any movement of the control levers, and she notified the foreman, who said he would fix it, which he did, and also told the plaintiff not to use the stick to dislodge the tin cups, but to use her band, as the stick would injure the die. The injury was testified to have occurred through the fall of the plunger upon the plaintiff’s hand, when she was trying to loosen a piece of tin, while the machine had been stopped and without any movement of the starting lever.

The defendants’ witnesses gave testimony to the effect that the machine was not out of order; that the plaintiff, instead of being told to use her hand upon the machine, had been threatened with dismissal if she failed to use the stick which was provided, and that the injury was due to her placing her fingers in the machine when it was actually in operation.

We find no inherent improbability in the plaintiff’s story, such as should lead us to say that the jury, when accepting her testimony, disregarded the weight of the evidence; and there was clearly sufficient proof to support a finding of the defendants’ negligence and of the plaintiff’s freedom from contributory negligence.

This was a machine of a dangerous character, as the term is usually understood, and the fact of the plaintiff’s employment to operate it, when under the age required by the statute, was evidence of negligence, to be considered by the jury in connection with the other facts in the case (Marino v. Lehmaier, 173 N. Y. 530), while the extent of the plaintiff’s assumption of the risk of injury from the machine was necessarily for the jury. Thus, that the act of the foreman in directing the plaintiff not to use the stick provided for her safety—treated as the act of a fellow servant merely—led to the injury which the master had furnished adequate means to prevent, would not, as matter of law, absolve the defendants, in such a case, from the charge of negligence; and the plaintiff’s obedience to the foreman’s direction was a circumstance favoring the absence of contributory negligence as a matter of fact.

A point is made that reversible error was committed in the charge to tlie jury. There was an issue whether the plaintiff had or had not represented her age to be sixteen years when she was employed, the dispute being as to the defendants’ claim that she had written her age, as well as her name and address, upon a card handed her by the foreman at the time. The plaintiff testified that she did not write the words stating her age; and the question was simply one of credibility which the jury, with the writing before them, could intelligently decide. The court, in the course of the colloquial charge, said upon this subject: “That fact, gentlemen of the jury, would not excuse the defendants, even assuming that the child put down her age as sixteen years; there was something more and further required of the defendants in order to comply with the statute which I have read you.”

It may well be that, this instruction was open to modification in so far as it failed to leave to the jury, directly, the question whether, in the light of the plaintiff’s representation of her age, if found to have been made, the defendants were negligent when violating the statute, the'fact of negligence through the violation being, as noted, for xhe jury to decide in connection with all the circumstances of the case. The charge, as quoted, simply related to the bearing of the plaintiff’s representation upon the fact of the defendants’ compliance with the statute, and, so far, it was not erroneous; but the defendants did not present the point to the court that the statement of her age by the plaintiff should be considered upon the question of negligence, the words of counsel being only “ I except to that part of your honor’s charge in which you said her writing her age did not excuse the defendants.”

The correct proposition being that the defendants were not, as matter of law, to be deemed excused, but that the plaintiff’s statement of her age might be considered upon the question of negligence, this exception, accompanied by no suggestion of a modification of the charge, cannot properly be deemed sufficient present error to justify a reversal of the judgment.

We conclude that the judgment should be affirmed, with costs.

Scott and Tbuax, JJ., concur.

Judgment affirmed, with costs.  