
    Robert J. Lowry, as Administrator of the Estate of Percival E. Lowry, Deceased, Respondent, v. The Anderson Company, Appellant.
    
      Negligence — injury on a freight elevator — employment of a child under sixteen— contributory negligence not imputed to the child — a failure to file the statutory certificate does not enlarge the employer’s liability — the Labor Law as to operating dangerous machinery is inapplicable to mercantile establishments.
    
    In an action brought t‘o recover damages resulting from the death of the plaintiff’s intestate, who was killed while employed in the office, in the defendant’s store, it appeared that it was the intestate’s habit after the close of the day's work at six o’clock, to place the books of the defendant on a cart or truck and take them down an elevator to a vault in the basement. The building was provided with both a freight and a passenger elevator, and up to a few days prior to the accident the intestate had used the passenger elevator for the transportation of the books, but the office having been moved adjacent to the freight elevator and between the first and second floors of the store, the intestate had .for three days prior to his death used the freight elevator for this purpose, operating it himself.
    Hydraulic power was used to run the freight elevator, and the operating cable was from one and one-half to two feet from the elevator door. There was a space in the guard or fence through which the operator took hold of the cable, and a pull of from fifteen to twenty pounds was necessary to move or stop it. The space between the platform of the elevator and the front wall was four inches. About six-thirty p. m. on a September evening the intestate’s dead body was found at the bottom of the elevator shaft, and the elevator was at the top of the building. The man in charge of the elevator had at six o’clock left it in the basement with the door closed. The truck used for t, the carriage of books was at the vault. No one saw the intestate fall, and no proof was given as to how the catastrophe occurred. His head was crushed and blood and brains were discovered on the frames of the door opening from the office to the elevator and extending along the wall to the sill of the door on. the second floor and the plaster along this space was broken. The intestate was fourteen years and six months of age and weighed about eighty-five pounds. He was without experience in the operation of an elevator, and had never received any instructions upon the subiect, although the defendant’s agents knew that he was in the habit of using the freight elevator.
    
      Held', that the evidence sufficiently established the negligence of the defendant, but that it did not establish the intestate’s freedom from contributory negligence, and that consequently a judgment entered upon a verdict in favor of the plaintiff should be reversed;
    That if an employer omits to comply with section 162 of the Labor Law (Laws of 1897, chap. 415) which prohibits the employment of a child under sixteen years of age in a mercantile establishment “unless such child shall produce a certificate issued as provided in this article, to be filed in the office of such establishment,” contributory negligence may not, as matter pf law, be imputed to the child in respect to whom the omission exists;
    That that part of section 162 of the Labor Law providing for the filing of the statutory certificate in the office of the mercantile establishment is directory only, and that .where the statutory certificate has been duly obtained, the fact that owing to the failure of the child to deliver it to the employer it has not been filed in the office of the establishment, does not enlarge the employer’s liability;
    That the provisions of the Labor Law which prohibit a child under the age of fifteen years from operating “an elevator in a factory” or a child under the age- of sixteen years from operating or assisting in operating dangerous machinery of any kind, do not apply to mercantile establishments.
    
      Appeal by the defendant, The Anderson Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 25th day of January, 1904, upon the verdict of a jury for $2,500, and.also from an order entered in said clerk’s office on the 13th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. H. Metcalf and Clarence M. Bushnell, for the appellant.
    
      Hamilton Ward, Jr., for the respondent.
   Spring, J.:

The appellant is a mercantile establishment in the city of Buffalo with nearly 200 employees. Percival E. Lowry, then a lad of fourteen years and six months, was employed by it as a cash boy in June, 1903, and continued in its employ until September eleventh following, when he met his death by falling down an elevator shaft in its store.

The elevator was in the rear of the building and was used principally in the carriage of freight and ran in a shaft extending from the basement up eight stories. The power used in running it was hydraulic, and it was operated by a rope or cable running up and down the shaft. This cable was from one and one-half to two feet from the elevator door, and there was a space in the guard or fence extending its entire length, through which the one operating the elevator took hold of the cable to move it up and down. To set it in motion or stop it required, a pull of fifteen or twenty pounds. The space between the platform, of the elevator and the front wall was four inches.

The office boy had been in the habit, after the close of the day’s work at six o’clock to place the book's of the corporation on a cart or truck and take them down the passenger elevator to the basement to be stored in the vault which was in the front part of the basement. The office had been near this elevator, but a short time before Lowry’s death it had been moved adjacent to the freight elevator shaft and between the first and second floors of the store. A door was cut through to the elevator well of sufficient width to wheel the truck or cart with the books. Lowry was then the office boy, and for the three days prior to his death in which this office was used he removed the books to the basement on the truck down the freight elevator, operating it himself.

About six-thirty of the evening of September eleventh his dead body was found at the bottom of this elevator shaft and the elevator was at the top of the building. The man in charge of the elevator ha,d left his work at six o’clock with the elevator in the basement and with the doors closed. The truck used for the carriage of the books was at the vault. No one saw Lowry fall and there is no proof as to how the catastrophe befell him. His head was crushed and blood and brains were discovered on the frames of the door opening from the office to the elevator and-extending along the wall to the sill of the door on the second floor and the plaster along this space was broken.

The boy had never received any instructions concerning the running of this elevator. He had used it for three or four days to. remove the books to the vault. The defendant’s agents knew of this usage as the jury have' found. The boy had been employed as a cash boy to run about the store and recently had been -taken into the routine office work and to do errands connected with that branch of the store. He was without experience in the operation of an elevator and the duty rested upon the defendant to explain to him the proper manner of managing it. (Brennan v. Gordon,. 118 N. Y. 489:) He weighed only eighty-five pounds, was of tender years and the necessity for instruction especially devolved upon the defendant. (Marino v. Lehmaier, 173 N. Y. 532; Hickey v. Taaffe, 105 id.. 26, 36.) We think the evidence sufficiently established the negligence of the defendant.

There is, however, no-sufficient proof of the freedom from fault of the intestate. Usually what is contributory negligence is for the jury to determine, and the immaturity of Lowry and the fact that he lost his life in the catastrophe and -that no-eye-witnesses were present are circumstances mitigating the proof required. The necessity for its production, however, still exists and the plaintiff must present some evidence, some circumstances, warranting the conclusion that the decedent exercised care commensurate with the situation. The requirement was not met in this case. The plaintiff’s intestate was nearly fifteen years of age and evidently of ordinary ability for that age. He was sui juris and proof must be elicited directly or inferentially supporting the conclusion that he exercised some care. Respondent’s counsel suggests that the presence of blood on the jamb of the office door and above indicates that he was pulling the rope to draw up the elevator and his head was caught and crushed between the elevator platform and wall. Assuming that the act occurred in that way there is no proof for what purpose he drew up the elevator or how he did it or in what manner the accident was caused. The truck was by the vault in the basement and there is no suggestion that the books were piled ready to be carried away. "We may conjecture that he intended to get the elevator ready and then to go after, the truck, but there are no facts or tangible inferences to sustain the surmise. •

It is claimed that the appellant failed to procure and file the certificate required by the Labor Law (Laws of 1897, chap. 415). Section 162 of that act prohibits the employment of a child under sixteen years of age in a mercantile establishment “ unless, such child shall produce a certificate issued as provided in this article, to be filed in the office of such establishment.” If the employer omits to comply with this provision contributory negligence may not as matter of law be imputed to the child in respect to whom the omission relates. (Marino v. Lehmaier, 173 N. Y. 530, 534; Gallenkamp v. Garvin Machine Co., 91 App. Div. 141, 144.)

Section 163 provides that “ such certificate shall be issued by the executive officer of the board, department or commissioner of health of the city, town or village, where such child resides or is to be employed, or by such other officer thereof as may.be designated, by resolution for that purpose, upon the application of the child desiring such employment.”

The application for the certificate must be accompanied with the ' affidavit of the parent or guardian of the child showing the date and place of birth of such child.” (Id.) The contents of the certificate are prescribed in section 164 of the act and the officer, department or board issuing the certificate must be satisfied of the school attendance of the applicant. (§ 165.)

Application was made to the board of health of the city of Buffalo for a certificate permitting the boy to be employed in a mercantile establishment and it was accompanied by the affidavit of the father of the child and the school certificate containing the facts required' by section 165 of the Labor Law. The certificate was signed by Dr. Gram, January 14, 1903. Dr. Gram, was a physician and surgeon and registrar of the board of health. He had been designated by the department of health to issue these certificates which had been furnished to him by Dr. Greene, the health physician of the city, with his name stamped upon them. The authority of Dr. Gram was adequate and the certificate was issued in compliance with' section 163 of the Labor Law (supra). The certificate was not filed in the office of the appellant and was not produced on the trial. The plaintiff, at the time of the employment of his son, advised the defendant that the board of health had issued the certificate required by law and he promised to bring it, but failed to do so? although the defendant several times asked the boy for it and each time he agreed to fetch it.

We apprehend the failure to file the certificate does not enlarge the liability of the defendant. . This part of the statute is directory and is for the purpose of furnishing proof of compliance with the law to the officer of the board of health desiring to . inspect it. (§ 167.) The essence of the statute is the issuing of the certificate, not its filing in the office of the employer. Where there is a substantial compliance with the provisions of this act the onus is upon the plaintiff in the event of injury in the discharge of his service to show the absence of contributory negligence precisely the same as if the statute were not in' force.

There are sections of the Labor Law which inhibit a child under the age of- fifteen years operating an elevator in a factory ” (§ 79) or when under .sixteen years of age operating or assisting in operating dangerous machinery of any kind: (§ 81, as amd. by Laws of 1899, chap. 192.) These inhibitions, however, apply to a factory, and the distinction between a mercantile establishment and a factory is clearly recognized and defined in the act. (§ .2.)

The judgment and order should be reversed and a new trial ordered.

All concurred. ...

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact. 
      
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