
    Margaret B. De Young, Appellant, v. John Irving, Respondent.
    Xegligence— master and servant • — a woman cleaning hot cylinders while in motion — defense of an insufficient number of fellow-servants, a neglect to promulgate rules and to comply with the provisions of the Factory Act ■ — waiver of the benefit of the statute — public poliey — Laws 1886, chap. 409, § 8, as amended by 1893, chap. 678. ;.
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, who was under the age of twenty-one years, operated in the defendant’s crinoline factory a drying machine, with which she was entirely familiar, consisting of hollow cylinders, healed, by steam, for the purpose of drying the cloth which the plaintiff fed to them. The work of cleaning the cylinders, which was occasionally performed by the plaintiff, was only done while they were running slowly and no cloth was passing- around them and after the heated cylinder had been allowed to cool.
    On the day of the accident the defendant came into the room where the plaintiff was working and said, in effect, that the cylinders were dirty and that they must fee cleaned. No one having come to clean them, the plaintiff, about three hours later, began to clean them while in motion and in use, and while she was so engaged her hand was caught between the cylinders and was severely burned. There was also evidence tending to show that the plaintiff had complained of t lie necessity of a man to tend the machine and that the defendant had promised to procure one.
    
      Held, that the plaintiff could not recover;
    That the accident, could not he said to have occurred because lire defendant failed to furnish a sufficient number of fellow-servants to aid the plaintiff in the discharge of her duty, as the presence of one or more men in the department of the plaintiff could not have saved her from the accident as long as she herself undertook to clean the machine;
    That the promulgation of rules would not have assisted the plaintiff, as the accident resulted from an obvious danger and from amachine with whose operation the plaintiff was entirely familiar;
    That the defendant could not he made liable under that the provision of the Factory Act which says that ‘ ‘ No person under eighteen years of age, and no woman under twenty-one years of age, shall be allowed to clean machinery while in motion,” as, assuming that the effect of the defendant’s language was a direction to the plaintiff to clean the machine while it was in motion, the plaintiff could not invoke the statute, as she had knowingly entered upon the forbidden task and thereby waived the benefit of the statute;
    That there is no rule of public policy which prevents an employee from deciding whether, in view of increased wages, the difficulty of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks.
    Appeal by the plaintiff, Margaret B. De Young, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Richmond on the 6th day of June, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Richmond Circuit, and also from an order entered in said clerk’s office on the 6th day of June, 1895, directing that the complaint he dismissed upon the merits..
    
      Howard R. Bayne and James E. Heath, for the appellant.
    
      William M. Mullen, for the respondent.
   Cullen, J.:

This action is servant against master to recover damages for personal injuries. The defendant owned and operated a factory in which were made “ crinoline ” and “ tarletan.” The plaintiff was in the employ of the defendant. At the time of the accident she was nineteen years of age. Her particular duty at that time was to feed a “ drying ” machine. The machine consisted of several rollers, partly or wholly around which the cloth passed. The rollers were hollow cylinders. The first was cold; the others were heated by the introduction of steam into them. The duty of the plaintiff was to guide the cloth into the clamps by which it was carried over the cylinders or “ cans,” and thence to the floor below. Contact with the hot cylinders dried and pressed the cloth. Two boys, fifteen years old, aided the plaintiff in straightening and feeding the cloth. This was all the force engaged about the machine. The evidence does not show very clearly whose duty it was to clean the cylinders or who, in the course of the work, actually did clean them.

The plaintiff testified that she was not employed to clean the cylinders, nor prior to the accident had she ever been directed to do so. But afterwards she stated that she had cleaned them after half-past five o’clock (the operation of the factory then ceased), when they ran slowly and there was no cloth passing around them. As nearly as can be gathered from the whole evidence it would appear that, while the plaintiff had at times cleaned the cylinders, ordinarily she only cleaned the chains, and the two boys cleaned the cylinders. This accords with the statement of both counsel made on the argument.

The evidence also tended to show that the “ cans ” were cleaned only when there was no cloth passing around them, and the hot cylinders had been allowed to cool by cutting off the steam. The injury to the plaintiff occurred on the 2d day of August, 1892. She had first worked in the defendant’s factory in the “ tarletan ” department in 1888 for four or five months, after which she left defendant’s employ. She subsequently returned to work in the “crinoline” department, and remained there from February to August, 1890. Again she entered defendant’s employ in April, 1892, continuing therein until the time of the accident, August 2, 1892. During her last term of employment she worked, until the middle of June, in the “tarletan” department and the remainder of the time in the “ crinoline ” department. What the character of the plaintiff’s duty in the “ tarletan ” department was does not appear. When the plaintiff worked on the “ crinoline ” in 1890, there was a man who attended the cylinders or “cans,” and she testified that during the last term of her employment she complained to the defendant of the necessity of having a man to attend to the machine, and the defendant had promised one should he had.

The narrative given by the plaintiff of the occurrence of the accident is this: At about eleven o’clock in the morning the defendant came into the room in which the plaintiff was working, stood behind her back and said : “ This is a damned pretty way the work is going on here.” “Well,” said she, “I can’t help it.” Tie said: “ The cans ought to be cleaned. They are in no condition to run goods in.” She said: “ They were cleaned Saturday night, but have not been run since.” lie said: “ Well, they must be cleaned.” The defendant looked very angry as he spoke. lie sent no one to clean the “cans.” So the plaintiff, after the lunch hour, and about two o’clock, began to clean the “ cans ” with rags. At this time the “ cans ” were in motion and cloth passing around them. While cleaning the “ cans ” plaintiff’s hand was caught between the revolving cylinders and severely burned. The plaintiff was asked if she understood the defendant as directing her to clean the “ cans; ” why she did not act immediately on the defendant’s direction ; what was told her by her co-employees during the lunch hour. These questions were excluded, and the plaintiff excepted. The defendant wholly denied the interview between the plaintiff and himself.

We think that, on this evidence, the jury could have found that the defendant directed the plaintiff to clean the “ cans,” though we are by no means prepared to say that the defendant’s language or conduct could be construed as an order to clean the “ cans ” while the cloth was passing around them or while the work was going on. There was a lever, by which the motion or operation of the machine could be at once stopped, and the plaintiff understood its use. But for the argument it may be conceded that the jury might have found, on the evidence, a direction to clean the “ cans ” while 'the work was going on, and we shall examine the alleged liability of the defendant on that assumption. The appellant claims that the defendant ivas at fault in three respects: That the defendant failed to furnish a sufficient number of fellow-servants to aid the plaintiff to discharge her duties safely; that he failed to make and promulgate adequate rules for safely operating the machine at which the plaintiff worked; that he allowed the plaintiff, being a female under twenty-one years, to clean the machine while in motion, contrary to the “ Factory Act ” (Chap. 409, Laws of 1886, as amended by chap. 673, Laws of 1892).

We cannot see how the injury to the plaintiff can be said, in any proper use of language, to have occurred from the want of a sufficient number of co-employees. Had there been one or more men in her department they could not have saved her from the accident, as long as she engaged in the work of cleaning the machine. Of course, if there had been men present, one of them, and not the plaintiff, might have been set at the task. If this is the sense in which it is claimed that there was au insufficient number of co-employees, the point hardly requires serious discussion.

Nor can we see that rules could anywise have contributed to the safety of the plaintiff. Her injury occurred not from any action or failure to act on the part of her fellow-servants, which proper rules might have prevented, but from the inherent danger of a work in which she was the sole actor. The danger was obvious. The plaintiff had been engaged in work at this machine for six months during 1890, and for some six weeks prior to the accident. The operation of the machine had become entirely familiar to the plaintiff by the length of her service. Instruction could have given her no more knowledge on the subject. In this respect the ease falls entirely within those of Hickey v. Taaffe (105 N. Y. 26); Crown v. Orr (140 id. 450).

The last ground on which it is sought to rest the liability of the defendant is the violation of the Factory Law. Section 8 provides : “No person under eighteen years of age, and no woman under twenty-one years of age, shall be allowed to clean machinery while in motion.”

If the defendant directed the plaintiff to clean the “ dryer ” while it was in motion he certainly violated the statute. But the answer to this claim is that plaintiff knowingly entered upon the forbidden task, and thereby waived the benefit of the statute. The main reliance of the plaintiff is based on Simpson v. New York Rubber Co. (80 Hun, 415), where the General Term of this department held that the statutory protection for the benefit of employees, enacted by the Factory Law, could not for reasons of public policy be waived. That case, however, has been entirely overruled by the Court of Appeals in Knisley v. Pratt (148 N. Y. 372). In the opinion in the latter case is written : The Factory Act, it is said, is passed to regulate the employment of- women and children, and imposes upon the employer certain duties and subjects him to specified penalties in case of default; that a sound public policy requires the rigid enforcement of this act, and it would contravene that policy to permit an employee, by implied contract or promise, to waive the protection of the statute. We think this proposition is essentially unsound, and proceeds upon theories that cannot be maintained, -x- * x- There is no rule of public policy which prevents an employee from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks. The statute does indeed, contemplate the protection of a certain class of laborers, but it does not deprive them of their free agency and the right to manage their own affairs.”

It may be alleged that the Knisley case is in turn overruled, in principle, by the decision on the constitutionality of the Sunday “Barbering” Act. (People v. Havnor, 149 N. Y. 195.) In the prevailing opinion there delivered Judge Vann writes: “ It is to the interest of the State to have strong, robust, healthy citizens capable of self-support, of bearing arms, and of adding to the resources of the country. Laws to effect this purpose by protecting the citizen from overwork, and requiring a general day of Best to restore his strength and preserve his health, have an obvious connection with the public welfare. Independent of any question relating to morals or religion, the physical welfare of the citizen is a subject of such primary importance to the State, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power, and, hence, valid under the Constitution. * * * As Mr. Tiedman says, in his work on Police Powers : If the law did not interfere, the feverish, intense desire to acquire wealth, * * * inciting a relentless rivalry and competition, would ultimately prevent not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation by resting periodically from labor:’ (Tiedeman’s Lim. Police Powers, 181.) As barbers generally work more honra eacli day than most men, the Legislature may well have concluded that legislation was necessary for the protection of their health.”

It is difficult to reconcile the doctrines of public policy and governmental regulation declared in these two cases. Certainly, if judged by the supreme test of virility of citizenship, the ability to successfully defend their country against aggression, the Germans can claim to stand the equal of any European people during the last half century. Yet, in Germany, our American Sabbath is substantially unknown, while to the humblest intelligence the injury dene the State by the maiming and deforming of its citizens must be apparent. But, on whatever contrariety in principles these decisions proceed, we feel bound to regard the decision in each case as conclusive on the question there involved.

We can imagine no answer to the questions excluded by the trial court which would place the case in a more favorable aspect than that which we have assumed for it in this discussion. It is, therefore, unnecessary for us to deal at any length with the propriety of tlie rulings of the trial court in these respects. In our opinion the evidence called for by the questions was properly excluded.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  