
    John Danaher, Respondent, v. The American Manufacturing Company, Appellant.
    Second Department,
    May 12, 1908.
    Master and servant — employment of infant under fourteen — section 70, Labor Law.
    The employment of a child under fourteen years of age to run a machine operated by steam power in a factory, contrary to section 70 of the Labor Law, is sufficient evidence of the master’s negligence to authorize the jury to find a verdict in favor of her parent for loss of services caused by an injury received while operating such machine.--
    Appeal by the defendant, The American Manufacturing Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered after a trial without a jury.
    
      Thomas F. Magner, for the appellant.
    
      Harry L. Brooks, for the respondent.
   Gaynor, J.:

The defendant operates a factory in which the machines are run by steam power. It employed the plaintiff’s daughter to attend one of the machines. While she was at such work on July 7th, 1904, her hand was caught in the machine and injured. She was born on June 8th, 1891, and was therefore only thirteen years and twenty-nine days old at the time of her hurt. She brought an action for damages against the defendant but died, not of her hurt, before it was tried. This action is by her father for loss - of her services while she was laid up from her hurt.

The labor law forbids that a child under 14 years of age “ be employed, permitted or suffered to work in or in connection with any factory in this state” (Laws of 1897, chap. 415, sec. 70, as amd. by Laws of 1903, chap. 184). The contention of the defendant is that as thé plaintiff violated this statute by suffering his child to work in the defendant’s factory (which is the case), he cannot recover damages for her accidental injury there. This, it seems tome, must be so if the mere fact alone of her employment by the defendant in violation of the statute was enough to make the defendant liable to her as matter of law for the damages caused by her injury. But if that be not so, then no more can the fact of the plaintiff suffering such employment be in itself alone as matter of law sufficient to prevent him from recovering for loss of her services. If the one case presents a question of fact then so does the other. The violation of the statute was the same by each party, and only the same effect as matter of law can be given thereto against each. It was heretofore held at Trial Term that the fact of employing a child under 14 years, of age in a factory in and of itself alone made the employer liable as matter of law in damages for the child’s accidental hurt by the machinery, on the settled principle that any violation of a duty of one to another, whether created by statute or by common law,-by which the latter is injured, makes the former liable, in damages therefor as matter of law; and that the question of the contributory negligence of the child could not be raised to relieve the employer of such liability (Lee v. Sterling Silk Manufacturing Co., 47 Misc. Rep. 182). This, however, was reversed on appeal (115 App. Div. 589), it being held that the fact of the illegal employment was only a piece of evidence, or some evidence, to be submitted to the jury on the question of the defendant’s negligence. Whether such fact alone would be enough to carry the case to the jury, and enable them to decide it either way, just as they chose, has not yet been decided; but it can scarcely be that the law leaves it to the jury to decide on that fact alone, for in such case a 'jury could find thereon for the plaintiff in one case and for the defendant in the next, and each verdict would be good. On the trial of this action, following the said decision on appeal, negligence or breach of duty of the defendant to the child outside of the violation of the statute, which was passed to protect her and all little children, was gone into and relied on by the plaintiff, viz., the proper instructions had not been given to the child in respect of the dangers of the machine, and liow to avoid them; and the decision of fact below was presumably based on such evidence, since the fact of the unlawful employment is not enough to enable a trial Judge to direct a verdict for the plaintiff, as was decided on appeal in the Lee case where that single question was squarely up. It may seem strange how evidence that the child was not properly instructed and warned of the dangers of the machine, and how to avoid them while working at the machine, conld be permissible when the statute forbade that she be allowed to work at the machine or in the factory at all, but such is the state of the law by the said decision on appeal in the Lee case.

But a majority of my brethren are now of opinion that “ upon the record” the unlawful employment alone was enough to enable judgment to be given for this father for loss of services of liis child, and vote for affirmance on that ground. I do not understand that the phrase li upon the record ” adds anything to or subtracts anything from the said fact; it can be no more nor less in this record than in any other record; it is the same fact everywhere and all the time. I think that the unlawful employment should be enough in an action by the injured child; but if it would have been enough in the case of this child, if her case had been tried, then it must be enough in all such cases by the in jured child, and that would make the question one of law and not of fact when the child sues, which, as has been stated above, has been decided on appeal otherwise. And if the unlawful employment alone enabled the injured child to recover as matter of law, it would as matter of law logically prevent a parent who puts a child at the unlawful employment (as was done by this plaintiff) from recovering for loss of services of the child, and that would defeat this plaintiff. In the condition the law is in, I vote on the unlawful employment, and also on the other evidence, as stated above.

The judgment should be affirmed.

"Rici-i, J., concurred; Jenks, J., concurred in separate memorandum, with whom Hooker and Miller, JJ., concurred.

Jenks, J.:

I concur in the result upon the ground that upon the record in this case the violation of section-70 of the Labor Law was sufficient evidence of the defendant’s negligence to sustain the judgment under the rule stated by us in Lee v. Sterling Silk Manufacturing Co. (115 App. Div. 589, 591).

Hooker and, Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs. 
      
      Laws of 1897, chap. 415, as amd. by Laws of 1903, chap. 184.— [Rep.
     