
    Gabriel Fortune, by Mary Fortune, as Guardian ad Litem, Respondent, v. William H. Hall, Appellant.
    Third Department,
    November 13, 1907.
    Master and servant — injury by sausage machine —contributory negli- . gence of infant — presumption of sui juris — when sections 70,162 and 163 of Labor Law not applicable.
    When a plaintiff over fourteen years of age, suing his master to recover for injuries received by placing his fingers in the hopper of a sausage machine, admits that a former master had cautioned him about putting his fingers into the machine, and that he knew that if lie put them in far enough they would be cut off, he fails to show freedom from contributory negligence, Usui juris. Án infant over fourteen years' of age, in the absence of proof to the contrary, is presumed to bé sui juris. •
    
    Although the hopper of such sausage machine may have been loose, such defect ' was not the cause of the accident, but rather the plaintiff’s carelessness in putting his hand therein.
    An express finding by the jury that such sausage machine was not dangerous is . inconsistent .with a finding that it -was not a safe and proper machine upon which the plaintiff should work, there being no evidence that he was not sui juris. ' •'
    Specific findings by the jury that the plaintiff was not properly instructed'as-to ' the dangers of.the machine and did not appreciate the,dangers áre, under the circumstances, against the weight of evidence.
    Section 70 of the Labor Law, prohibiting the employment of children under fourteen years of -age in any factory, and the similar provisions of sections 163 and 163 of the Labor Law are not applicable to an employee who at the time of his injury is over fourteen.years of age.
    Moreover, when it is clear that the injuries of au employee over fourteen years of age were due to his contributory negligence, it is immaterial that his-master employed him without the certificate as to physical ability required by sections 162 and 163 of the Labor Law. '
    Appeal by thé defendant, William IT. Hall, from a judgment of the Supreme Court in favor of - the plaintiff, entered in the office of the ■ clerk of the county of St. Lawrence on the 4th day of February, 1907, upon the -verdict of a jury for $1,060, rendered by direction of the court' after a trial at the St. Lawrence Trial-Term.
    The .action is for negligence. The plaintiff is an infant and was injured when he was slightly .upwards of fourteen years of age while operating a sausage machine for the defendant, who conducts a mercantile establishment or meat market. The' negligence is based upon the claims that the machine was defective; that the defendant failed to give proper instructions to the plaintiff relative to its operation and employed him without his having a health or employment certificate as provided by sections 162 and 163 of the Labor Law (Laws of 1897, chap. 415, as respectively amd. by Laws of 1903, chap. 255, and Laws of 1905, chap. 518). The machine was an ordinary Ho. 32 Enterprise sausage grinder. It was run by electric power. To operate it the meat is cut up in small pieces and put by hand in a bowl or arbor about two and one-lialf to three inches deep. At the bottom of the bowl is a revolving worm which carries the meat forward to the knives. The plaintiff was not employed to operate the machine, but during • the absence of the regular operator he took his place and did his work. While the plaintiff was operating the grinder the meat backed up or clogged in the bowl, and in attempting to retnbve the meat with his hand the end of his forefinger and about half of the second finger of his right hand were caught in the worm at the bottom of the bowl and cut off and the hand was otherwise injured..
    The only evidence of the machine being defective or out" of repair was that the rim which held the outside plate against the knives would get loose and had to be tightened. It was shown that the rims of' all machines of this character will get loose. The plaintiff knew that the rim would get loose, as he had seen others turn it, and he testified that he had tried to turn it himself but could not turn it tight enough.
    •At the close of the testimony the court submitted to the jury a series of questions as follows : First,.was the machine a dangerous machine % nSecond, was the machine a safe and proper machine upon which the plaintiff should work ? Third, was the defendant negligent in employing this plaintiff without having obtained a health certificate?- Fourth, was the plaintiff properly instructed as to his work with this machine and as to its dangers? Fifth, did the plaintiff at the time of the accident understand and appreciate the dangers from putting his hand into the machine as lie did at the time he was hurt? and finally the court submitted to the'jury the question- of the plaintiff’s damages which he instructed them to , assess regardless of whether or not the defendant was liable.
    • The jury answered the first and second questions no-;, the third question yes; the fourth and fifth questions np, and assessed the damages at $1,000. Plaintiff’s counsel thereupon moved for a direction of a verdict in that sum, and the defendant’s counsel; moved for a verdict of no cause of action, and th,e conrt directed the jury to find a verdict for the plaintiff- for $1,000 dnd the defendant excepted. From the judgment entered 'thereon the defendant has appealed.
    
      Howard R. Sturtevant, C. Arthur Parker and Ledyard P. Hale, for the appellant.
    
      James C. Dolan, for the respondent.
    
      
       Since respectively amd. by Laws of 1906, chap. 490, and Laws of 1907, chap. 291.— [Rep.
    
   Chester, J.:

The proof shows that the plaintiff before working for the-defendant had been employed by one Thayer in 1905 to operate a like machine. Thayer, who was sworn for the plaintiff, testified that he used to show the -plaintiff how to operate it and cautioned him to be careful of his fingers and not to put them into the -machine; The plaintiff admitted that Thayer cautioned, him to be careful. Plaintiff also testified that he kne.w that if he got his. finger down into the machine far enough it would be cut off'; and further, that Mr. Lavar, the defendant’s foreman, also told him to be careful and not .get his fingers in'there. Plaintiff' said that he knew if he got his fingers in far enough they would get pinched off.

There is absolutely no proof in the case that the plaintiff exercised any care in the operation of the machine. He did nol; in any way give any evidence upon which the jury could properly say that the -plaintiff had affirmatively established freedom from contributory negligence.. On the other hand, the proof is that the plaintiff, if lie was sui juris, was guilty of - contributory negligence. This appears from his own. testimony above referred to.

The plaintiff was injured July 26, 1906. His fourteenth birthday was on the fifteenth of that month. In the absence of proof to the contrary the legal presumption, is that he was sui juris. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.) There was no claim on the trial and no proof that he was not mi juris, so that force must be given to the legal presumption that he was.

It is clear, too, that the plaintiff’s injuries were not caused by any .defect in the machine even though the clogging was caused by the rim becoming loose, but was caused by his carelessness in using "his hand to remove the meat while the machine was running.

The jury found that the machine was not a dangerous machine, which was clearly inconsistent with its finding that it was not a safe and proper machine upon which the plaintiff should work, there being no evidence that he ivas not sui juris. _

It appears to us that the verdict in two material respects at least is clearly' against the evidence, viz., in the negative answers given to the fourth .and fifth questions submitted to the jury wherein they found that the plaintiff was not properly instructed as to his work with this machine and 'its dangers and that he did not understand and appreciate the danger from putting his hand into the machine as lie did' at the' time he was hurt., This conclusion sufficiently appears from what has already been said, except that it may be added that the question of the plaintiff’s freedom from contributory negligence was only submitted to the jury in connection with the fifth question and their verdict as to that is involved in their answer to that question.

There is nothing in the case of Marino v. Lehmaier (173 N. Y. 530), cited by the respondent, which will save his judgment. That case holds that the provision of section 70 of the Labor Law, prohibiting the employment of a child under the age of fourteen years in any factory, in effect declares that a child under that age does not possess the judgment, discretion, care and caution necessary for the employment in such a dangerous avocation and, therefore, is not as a matter of law chargeable with contributory negligence or with having assumed the risks of the employment.

The plaintiff, as has been shown, had passed that age before he was hurt and, therefore, the prohibition of such section 70 (as amd. by Laws of 1903, chap. 184), or the like provision in section 162 (as amd. supra), prohibiting the employment of a child under fourteen years of age in a mercantile establishment, with certain exceptions mentioned in the section, does not apply.

It was material, however, on the question of the defendant’s negligence to show that the plaintiff had been employed by the defendant without obtaining, .the certificate that the former'was physically able to perform the work which he intended to, do, in ' accordance with sections 162 and 163 of the Labor Law (as amd. supra). But upon that question there was no proof that the accident happened because of the failure to comply with, the Labor Law. It is clear, on the contrary, that it happened because of the plaintiff’s failure to use ordinary care to protect himself. His injuries appear to have been the result of liis own carelessness and for that reason his recovery cannot be sustained. (Gallenkamp v. Garvin Machine Co., 91 App. Div. 141; revd., 179 N. Y. 588, on dissenting opinion of Ingraham, J.) The judgment should be reversed and. a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to the appellant to abide event. . '  