
    Oswald Bachmann, Jr., an Infant, by Oswald Bachmann, His Guardian ad Litem, Appellant, v. John L. Little and Herman G. Breuss, Respondents.
    First Department,
    October 25, 1912.
    Master and servant — injury to child under sixteen years of age working on embossing machine — dangerous machine — question for jury — prima facie negligence — evidence — cross-examination — contributory negligence — setting aside verdict.
    In an action to recover for injuries received by a child under sixteen years of age, while working on an embossing machine in alleged violation of former section 81 of the Labor Law, which provided that “ Children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machines of any kind,” it was proper for the trial court to submit to the jury the question as to whether or not the machine were a dangerous one within the meaning of the statute.
    A finding that the machine was dangerous would establish prima facie negligence of the defendant.
    Refusal of the court to allow the defendant to show that the machine in question and other similar machines had been in operation for a number of years without accident, was error justifying the setting aside of the verdict, where, if the machine was dangerous at all, it was so by reason of the manner in which it was operated.
    It was also error to refuse the request of defendant’s counsel to cross-examine the plaintiff on the question of his contributory negligence.
    Appeal by the plaintiff, Oswald Bachmann, Jr., from an order of the Supreme Court, made at the New York Trial "Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1911, setting aside the verdict of a jury in favor of the plaintiff for $1,500, and granting a new trial upon a motion of the defendants made upon the minutes.
    
      August P. Wagener, for the appellant.
    
      Theodore H. Lord, for the respondents.
   McLaughlin, J.:

On the 15th of December, 1906, the plaintiff, then a little over fourteen years of age, was at work for the defendants on an embossing machine, and while thus engaged his right hand was caught between the plates of the machine, and by reason thereof he sustained injuries which resulted in the loss of three fingers. He brought this action to recover the damages alleged to have been sustained. At the trial ■ he had a verdict of $1,500, which was set aside on the ground of exceptions taken during the trial and that it was against the evidence.

The statute in force at the time the accident occurred provided that “ Children under sixteen years of age shall. not be permitted to operate or assist in operating dangerous machines of any kind.” (Labor Law [Gen. Laws, chap. 32; Laws of 1897, chap. 415], § 81, as amd. by Laws, of 1906, chap. 366.) The statute has since been amended and is now section 93 of the Labor Law, and provides that “No child under the age of sixteen years shall be employed or permitted to work in operating or assisting in operating any of the following machines,” specifying them. An embossing machine, operated as the one was by the plaintiff at the time he was injured, is not one of those named. (See Labor Law [Consol. Laws, chap. 31; Laws of 19.09, chap. 36], § 81, as amd. by Laws of 1909, chap. 299; Id. § 93, as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 107.)

The trial court submitted to the jury, and I think correctly, the question as to whether or not the machine were a dangerous one within the meaning of the statute first quoted. If the embossing machine were a dangerous one within the meaning of the statute then the proof established, prima facie at least, the defendants’ negligence. The plaintiff was under sixteen years of age, and to permit him to operate the machine was in violation of the statute. (Gallenhamp v. Garvin Machine Co., 91 App. Div. 141; reversed on dissenting opinion of Ingraham, J., 179 N. Y. 588; Marino v. Lehmaier, 173 id. 530.) The machine was not out of repair, nor was it inherently dangerous. If dangerous at all it was by reason of the manner in which it was ©perated. The defendants sought to show that the machine had been in operation about a year and a half, and during that time no accident, prior to the one in question, had happened. This proof was excluded and an exception taken. They also sought to prove that for upwards of twenty years they had been using some twenty similar embossing presses, and during that time no accident had occurred upon any of them. This proof was also excluded and an exception taken.

I think the court erred in excluding this proof and for that reason the verdict was properly set aside. Whether the machine were dangerous depended' upon whether in the ordinary course of its operation danger to the operator were to he reasonably anticipated (Gallenkamp v. Garvin Machine Co., supra), and as bearing upon that subject it is difficult to imagine what proof could be more cogent than that this machine or similar ones had been used for many years, during which time no operator had been injured.

I am also of the opinion that the court erred in not permitting the defendants’ counsel to cross-examine the plaintiff on the question of his contributory negligence. The statute does not create the cause of action, nor does it provide that its violation in case of injury entitles the one injured to damages. A violation of the statute as indicated undoubtedly furnishes presumptive evidence of defendants’ negligence, and as said in the Marino case, it “ in effect declares that a child under the age specified presumably does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous avocation, and is, therefore, not, as a matter of law, chargeable with contributory negligence or with having assumed the risks of the employment in such occupation.” So here, while it could not be said as matter of law that the plaintiff assumed the risk incident to operating the machine, or that he was guilty of contributory negligence in the manner in which he did operate it, nevertheless, if the court had permitted the. defendants to cross-examine the plaintiff on those subjects, his testimony might have been of such a character as would have justified the jury in finding that he was in fact guilty of contributory negligence. The defendants’ counsel duly excepted to the ruling.

For the errors thus committed I am of the opinion the verdict was properly set aside.

The order appealed from, therefore, is affirmed, with costs to the respondents to abide the event of the action.

Laughlin, Clarke and Scott, JJ., concurred.

Ingraham, P. J. (concurring):

I concur on the ground that it was error to exclude evidence as to the prior use of the machine.

■Order affirmed, with costs to respondents to abide event.  