
    White v. Witteman Lithographic Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1890.)
    Master and Servant—Injury to Minor—Negligence.
    Under Laws N. Y. 1886, c. 409, § 3, as amended by Laws 1887, c. 463, providing that “no child under thirteen years of age shall be employed in any manufacturing establishment, ” the employment of a child under that age does not of itself give a right of action for an injury sustained in the service, but negligence, and freedom from contributory negligence, such as may be required of the child, must be proved.
    Appeal from circuit court, Kings county.
    Action by Charles White, an infant, by Frank White, his guardian ad litem, against the Witteman Lithographic Company, a corporation, for personal injuries to plaintiff while in defendant’s employ. From a judgment for defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial, plaintiff appeals. Laws H. Y. 1886, c. 409, § 2, as amended by Laws 1887, c. 462, provides: “Ho child under thirteen years of age shall be employed in any manufacturing establishment within this state. ”
    •Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      James C. Church, for appellant. Goepel & Regener, (L. C. Regener, of counsel,) for respondent.
   Barnard, P. J.

The complaint alleges that the defendant employed the plaintiff, who was at the time under 13 years of age, and that he was placed at work on a dangerous machine without sufficient instructions as to its management; that, by reason of the plaintiff’s ignorance of the machine, he was injured. The proof as to the age of the boy is conflicting. He said when he was employed that he was 14 years old. The defendant’s agent asked the boy for his father and mother upon this question of age. The plaintiff gave excuses why they could not come, and the defendant hired the boy upon" his own assurance as to.his age. The case went to the jury upon the question whether or not the plaintiff was sufficiently instructed as to the management of the machine, and as to its dangerous character if not properly attended to. The jury found for the defendant. There was no negligence therefore proven, except that involved in the employment of the boy, who was under the age of 13 years, contrary to statute. The question was not distinctly raised at the trial. The judge instructed the jury that a boy, under 14 years of age, there being a statute against employments under 13, could not avail himself of the fact against the defendant. The judge refused to charge that it was immaterial whether the factory act was violated or not. An employment of a boy under 13 did not of itself give a right of action for an injury sustained in the service. The boy was competent, was fully instructed, and may have been careless; for this follows the verdict. The only possible-question, therefore, is whether negligence is made out by the mere hiring of a child under the statute age. The general purport that the employment of a minor upon dangerous machinery is not of itself proof of negligence is abundantly decided. Be Graff v. Railroad Co., 76 N.Y. 125; Hickey v. Taaffe, 99 N. Y. 204,1 N. E. Rep. 685, and cases cited. The principle of the decision is that the minor takes the risk of the employment like and adult, only qualified by the fact that his judgment and care in the business shall be such only as called for by a minor. Stone v. Railroad Co., 115 N. Y. 104, 21 N. E. Rep. 712. There have also been decisions that, when an employment has been entered into with a minor, proof of negligence on the part of the master, and freedom from negligence on the part of the minor, shall be proven to entitle a plaintiff to judgment. A violation of a statute has been held to be insufficient of itself to establish negligence. The case of Brown v. Railroad, 22 IT. Y. 191, held that proof of an ordinance regulating speed was inadmissible as evidence upon the question of negligence of the company in maintaining a greater rate of speed than was permitted by the ordinance. McGrath v. Railroad Co., 63 N. Y. 522; Massoth v. Canal Co., 64 N. Y. 524. The case under consideration is not like Willy v. Mulledy, 78 N. Y. 310. There a breach of duty causing damage was held to be actionable. The breach of duty in this case did not occasion the injury of itself. The violation of the statute was evidence only upon the question, but other negligence and freedom from contributory negligence, must be proven. The question is not free from doubt. The statute was designed to protect children from dangers before the maturity of judgment assumed from a certain age was acquired. The decision, however, held that a minor assumes the risk of the employment. The statute does not say that a mere employment of a child under 13 and an accident afterwards shall support an action. The question whether a violation of law as to rate of speed is proof of negligence, when the accident is caused by the rate of speed, is somewhat unsettled, the weight of authority being tho^ the ordinance is only evidence upon the subject. The judgment should there, fore be affirmed, with costs.  