
    John M. Rahn, an Infant, by John F. Rahn, his Guardian ad Litem, Plaintiff, v. Standard Optical Company, Defendant.
    Fourth Department,
    January 3, 1906.
    Negligence — injury from circular saw — failure to comply with Labor Law — when error to grant recovery.
    Plaintiff was directed by the defendant’s foreman to get a stick of a certain shape for a coemployee; not finding any, he began cutting some with a circular saw, upon which Ire injured his hand. He had operated the saw before by direction of the foreman, though not in making this particular kind of a stick. The plaintiff at the time was fifteen years of ago, employed without the certificate ■ required by sections 70-73 of the Labor Law. The negligence charged was that he was permitted to operate a dangerous machine in violation of the Labor Law and that he was not instructed as to the manher of using the saw.
    Held, that whether the plaintiff was operating the saw with the defendant’s permission was for the jury, and, if found in the affirmative, the question of defendant’s negligence, assumed risk and contributory negligence of plaintiff were also for the jury.
    Motion by the plaintiff, John M. Kahn, an infant, by John F. Kahn, his guardian ad litem, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at the Ontario Trial Term.
    
      William S. Moore, for the plaintiff.
    
      Lewis W. Keyes, for the defendant.
   Williams, J.:

The exceptions should be sustained and motion granted, with costs to plaintiff to abide event.

The action is tó recover damages for injuries to the plaintiff alleged to have been the result of the defendant’s negligence. The injuries were to the plaintiff’s hand, received in the operation of a circular saw in defendant’s factory. The plaintiff commenced work in the factory March 6, 1902, and continued to work there until the accident, May 26, 1902. His work was the polishing of temples to eyeglasses or spectacles. There were a large number of persons so employed in the same room. In this work a small stick was used which had to be replaced occasionally. At the time of the accident there was a new man working at plaintiff’s side. He needed a stick and applied to the foreman for one. The foreman told him to. have plaintiff get him a stick, that lie. knew where they were. The plaintiff upon receiving this word left his place,' wén-t into another room in the factory, took some lumber, and went to sawing-out some sticks. '-While so engaged, he received the injuries com- , plained of. - During the time he worked for defendant plaintiff was between fifteen and'sixteen years of age. • His sixteenth 'birthday was August 23, 1902. Ho certificate under the Labor Law was procured. -.

Hegligence on the part of the defendant was based , upon three allegations: .

1. That' plaintiff was .employed without the certificate under sections 70-72 of the Labor Law (Laws of-1897, chap. 415)..

2. That plaintiff was permitted to operate a dangerous machine in violation of section 81 of the. Labor .Law (as amd., by ■ Laws of 1899", chap. 192).

3. That plaintiff was not instructed as to the manner of operating the saw, and the dangers, incident thereto.

There can be little- doubt, under -the evidence, as to the facts upon which these propositions were based. Certainly there was evidence making .them questions for 'the jury.- The plaintiff was under sixteen years of ■ age' and no certificate had been obtained under sections 70-72 of the Labor Law. The saw was a'dangerous machine, and the plaintiff was. permitted to operate it. ' His principal business was polishing temples, but he was employed to do whatever he was directed to do by the foreman.' He had dbne other work aside from.polishing- temples, and he had on several occasions, with the knowledge and by direction of the foreman,-operated the' saw in question. He had sawed out sticks, before, though not this particular' kind of sticks. He was directed to get a stick for the" new-employee, and there being none on'hand hé undértook t'o saw out some, as lie had before done with reference to other sticks used in the factory.' It was q,t least a question for the - jury whether he Was not, on the occasion of the accident, operating the saw with the permission of the defendant. Assuming these facts to have been found by the jury, the negligencé of the defendant would be a question of fact for the jury, and could not -be determined by the court as a matter of law. (Marino v. Lehmaier, 173 N. Y. 530, 539 ; Gallenkamp v. Garvin Machine Co., 91 App. Div. 141 ; Sitts v. Waiontha Knitting Co. (Ltd.), 94 id. 38, and the cases therein referred to.)

The jury might readily find, if the defendant was guilty of negligence, as alleged, that such negligence was the cause of the injury.

The questions of contributory negligence and assumed risk were also for the jury. The. plaintiff was a young boy, not a man, and these questions are to be considered in view of his age. He riiad never been instructed as to the care necessarily required in operating the saw, and adjusting and holding the board in place. It could not be ‘held as matter of law that he fully understood and appreciated the dangers incident to the want of care in adjusting the board and holding it in place while the saw was being operated. He did not deliberately or intentionally bring his hand in contact with the saw. In some way he failed to hold the board steady and it was thrown aside arid his hand drawn against the saw. Whether he assumed the risk qf such an accident, whether he w,as guilty of contributory negligence in operating the saw, were, under all the circumstances surrounding liira, questions of fact for the jury, and not of law for the court. (See cases above cited and the other cases therein referred to.)

All concurred, except McLennan, P. J., and Hash, J., who dissented.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide the event.  