
    Leopold Pfeffer, as Administrator, etc., of George B. Pfeffer, Deceased, Appellant, v. Joseph Stein and William H. Gesswein, Respondents.
    
      Negligence — voluntary exposure to danger — subsequent admissions of a foreman not in the course of his 'employment—failure to object to incompetent evidence — violation of the Factory Act.
    
    On the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, who was employed to sort corks in a bicycle factory and was injured by being caught in shafting on which he had volunteered to shift a belt which he had reached by mounting upon a ladder, the foreman of the bicycle factory was asked whether he had not told the mother of the deceased “ that he would not have told the boy to go up the ladder if he had thought he would be hurt,” which he denied. Subsequently the mother and two other witnesses testified that he did make the statement. There was no other testimony which tended to show that the foreman gave any direction to the boy to shift the belt.
    
      Seld, that the testimony of the mother, as an impeachment of the denial of the foreman, was incompetent;
    That as the declaration was not made within the scope of the foreman’s employment by the defendants, the proprietors of the factory, it was not competent evidence of the principal fact alleged to have been stated by the foreman;
    That the fact that no objection was made to the proof did not make it effective to create a liability on the part of the defendants;
    That if it should be assumed that the deceased had been employed in violation of the Factory Act the result would not be different.
    
      Appeal by the plaintiff, Leopold Pfeffer, as administrator, etc., of George B. Pfeffer, deceased, from a judgment.of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of January, 1897, upon the dismissal of the complaint by direction; of the court after a trial before the court and a jury.
    
      Alexander Y. Scott, for the appellant.
    
      Horace Graves, for the respondents.
   Hatch, J.:

By this action damages were sought to be recovered on account of the claimed negligence of the defendants, in permitting and directing the employment of the deceased in a hazardous undertaking. The court heard the whole of the evidence of both parties, and, at ■ the close of all the proof, directed the verdict. It appears from the undisputed facts that the deceased was employed in and about the defendants’ factory, in sorting corks used upon bicycle handles. This was a harmless employment, under which the deceased incurred no danger whatever, nor did it bring him in close proximity to or in contact with any machinery used in and about the factory which was dangerous to either life or limb. While so employed the deceased seems to have procured a ladder,'placed it underneath a revolving shaft to shift a belt running upon the shaft, and in so doing he-was caught in the shaft and wound around it, receiving injuries from which he subsequently died. The case, is destitute of any proof showing that he made the attempt to shift, the belt by .virtue of any direction given, to him by the foreman of the establishment, or by any other adult person employed therein. So far as appears, such act was attempted without the knowledge of the defendants or their foreman, and was purely a voluntary act upon the part of the deceased. . There is evidence tending to establish that the attempt was made by reason of a difference .between the deceased and the other boys, with whom he was employed, as to whether the deceased had the ability to shift the belt; and it is quite probable that he made the attempt which cost him his life in order to demonstrate to his companions that he was ■ able to do it. The case, therefore, was destitute of proof tending to establish that the defendants were in anywise responsible for the act which produced the injury, and, therefore, there was no negligence upon their part.

The appellant, however, relies upon certain admissions claimed to have been made .by the foreitoan of the defendants, after the accident, and subsequent to the death of the deceased. The foreman had been asked, during the course of the trial, if he did not tell the mother of the deceased “ that he would not have told the boy to go up the ladder if he had thought he would be hurt,” and the foreman answered in the negative. Subsequently the mother was called as a witness, and testified that after the funeral the foreman called at her house and stated to her “ that if he thought the boy would have been hurt he would not have told him to go up the ladder.” ' The mother was corroborated as to this statement by two other persons who were called as witnesses for the plaintiff.

This testimony was incompetent for any purpose. As before observed, there was no evidence which tended to establish that the foreman gave any direction to the boy to shift the belt; consequently, any interrogation in respect of any declaration which he made subsequent to the transaction was immaterial and irrelevant, and under well-settled rules testimony in impeachment of such statements was inadmissible. This testimony was, therefore, incompetent by way of impeachment. (Furst v. Second Avenue R. R. Co., 72 N. Y. 542.) It was also incompetent and ineffectual as testimony in establishment of the principal fact. The declaration was not. made in the .scope of- any duty or employment of the foreman by the defendants; and he had no authority, incidental or other'wise, to make his declarations binding upon the defendants. The testimony was, therefore, inadmissible for this purpose. (First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Sherman v. D., L. & W. R. R. Co., 106 id. 542.) No objection was interposed to this testimony, but this fact does not avail to establish liability on the part of the defendants. (Delaney v. Hilton, 18 J. & S. 341.)

If we assume that, the employment was in violation of the Factory Act, it does not have the effect of changing the result.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  