
    Annie Stenson, as Administratrix, etc., of Thomas Stenson, Deceased, Appellant, v. J. H. Flick Construction Company, Respondent.
    First Department,
    July 7, 1911.
    Master and servant — negligence — employment of minor under sixteen years of age in dangerous occupation — consent of parent to such employment — proof necessary to recovery.
    The fact that the mother of. a minor under sixteen years of age consented to his employment in a dangerous occupation contrary to section 483 of the Penal Daw, does not prevent her from maintaining an action as his administratrix to recover for his death caused by the negligence of the master who employed him, if there be 6ther next of kin of the decedent.
    In order that a master may be held liable for the death of an employee under sixteen years of age- upon the ground that he employed him in a dangerous occupation contrary to section 483 of the Penal Daw, it must be shown that the master knew that the decedent was under sixteen years of age, or that his appearance was such as to put him Upon inquiry with respect thereto.
    Mere proof that the decedent was three months under sixteen years of age at the tune of his death without any evidence as to his appearance with respect to age is not sufficient to take the case to the jury where the sole right to a recovery is predicated upon the'statute.
    Miller and Dowling, JJ., dissented.
    Appeal by the plaintiff, Annie' Stenson, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, eritered in the office of the clerk of the county of Yew' York on the 6th day of August, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Yew York Trial Term.
    
      Rosario Maggio, for the appellant.
    
      E. Clyde Sherwood, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Thomas Stenson, which occurred on the 9th day of February, 1907, while he was in the employ -of the defendant, and in the act of alighting from a car on which he was riding in the performance of his' duties as a brakeman and spotter. He had been in the employ of the defendant about eight months, his first employment being to carry water .to the men engaged in the construction work of .the defendant and thereafter as a fireman on a locomotive used in the same work and for a period of about three months as a brakeman .and spotter. The defendant was engaged in excavating for the construction of the New York, Westchester and Boston railroad, in the borough of the Bronx. Decedent’s duties as brakeman and spotter were to ride .on the end of the train, observe the track, and signal the engineer if necessary while the train was in motion, and when the train was being loaded to signal the engineer to move and to stop the train in order to place the empty cars oppo-site a steam shovel. The evidence shows that decedent was-an intelligent, healthy, strong boy, and it sufficiently appears that he understood his duties. He was fifteen years, four months and twenty-eight days of age at the time of the accident which resulted in his death. Presumably he understood the risks attending his alighting from the train while in motion, which he customarily did, as on this occasion, when the end of the train of empty cars on which he was riding reached a a point nearly opposite the steam shovel, where ■ the cars were to be loaded. At common law, therefore, the decedent would be presumed to have assumed the risks, and had he lived and been injured he could not have recovered.' It is claimed, however, that the defendant in thus employing the decedent violated the provisions of section 289 of the-Penal Code, re-enacted by section 483 of the Penal Law, which is as follows:

A person who,
“1. Willfully causes or permits the life or limb of any child actually or apparently finder the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved; or,
2. Willfully causes or permits such child to be placed in such a situation or to engage in such an occupation that its life or limb is endangered, or its health is likely tobe injured, or its morals likely to be impaired; is guilty of a misdemeanor.
“ 3. Any parent or guardian or other person having custody of a child under sixteen years of age, except in the city of. ' New York who omits to exercise due diligence in the control of such child, to prevent'such child from, violating any of the provisions of this chapter and any such person or any other person responsible for or who by any act or omission causes, encourages or contributes to the violation by any such child of said provisions shall be guilty of a misdemeanor and punishable accordingly.”

It has been held in many cases that the violation.of a statute is some evidence of negligence and that in the case of children of immature years the question of contributory negligence and assumption of risk would then also be for the jury (Kircher v. Iron Clad Mfg. Co., 134 App. Div. 144; affd., 200 N. Y. 587; Lee v. Sterling Silk Mfg. Co., 115 App. Div. 589; Koester v. Rochester Candy Works, 194 N. Y. 92; Marino v. Lehmaier, 173 id. 530); but,.as will be seen presently, it does not follow that every ease of a violation of a statute gives rise to a cause of action for negligence for injuries caused thereby. It is contended in behalf of the respondent that the mother of the decedent, who brings this action as his administratrix, induced or acquiesced in his employment and that, therefore, the action cannot be maintained. There is no force in this contention. The action is not for her benefit, but for the benefit óf the next of kin of the decedent. (Code Civ. Proc. §§ 1902, 1903.) He died unmarried and without issue. . She is one of the next of kin but not solely entitled to a recovery, for he also left six brothers and sisters. (See Code Civ. Proc. §§ 1870, 1905, 2732; Decedent Estate Law [Gonsol. Laws, chap. 13; Laws of 1909, chap. 18], §, 98, as arad.)

There is no evidence that the defendant knew the age of the decedent, or as to his appearance with respect to age. It is very doubtful whether a criminal prosecution could be sustained under the statute quoted on mere proof of the facts that the boy was employed in a dangerous occupation and was a few months under sixteen years of age, without evidence of his appearance with respect to age, or notice or knowledge of his age on the part of his employer other than would be gained from his appearance. We are not, however, required to decide whether a criminal prosecution could be sustained on this evidence, but only whether in view of the statute the evidence is sufficient to take the case to the jury on the question of the defendant’s negligence. It was held in Koester v. Rochester. Candy Works (supra), which was an action for negligence based on a violation of section 70 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1903, chap. 184), which absolutely prohibited the employment in a factory of children under the age of fourteen years, and .between the ages of fourteen and sixteen, unless a certificate were procured and produced as therein provided, without regard to the question of the knowledge of the employer with respect to the age of the child, that the employer cannot be held liable for an injury to a child employed in violation of the statute, provided he exercised reasonable care to ascertain the age of the child and was misled with respect thereto, even though such evidence would not constitute a defense to a criminal prosecution for a violation of the statute. (See, also, People v. Taylor, 192 N. Y. 398; Sitts v. Waiontha Knitting Co., Ltd., 94 App. Div. 38.) The violation of the statute then, if it did not involve notice or knowledge with respect to the age of the child, would not he evidence of negligence, on the part of the defendant sufficient to take the case to the jury. Negligence is not presumed hut must he proved. The burden was, therefore, on the plaintiff to show. that the defendant knew that the decedent was not sixteen years of age, or that his appearance was such as to put the defendant upon its inquiry, with respect thereto. The mere fact that the decedent was three months and a few days under the age of sixteen years without any evidence as to" his appearance with respect to age was not sufficient to take the case to the jury and to permit them to draw the inference that the defendant knew or should have known that the hoy was within the prohibited age. 'It is not necessary, therefore, to decide the question as to whether the-employment of the decedent by the defendant as brakeman and spotter was a dangerous employment within the statute.

It follows that the judgment should be affirmed, with costs.

Ingraham, P. J., and McLaughlin, J., concurred; Miller and Dowling, JJ., dissented.

Judgment affirmed, with costs.  