Dresch v. Elliott

122 N.Y.S. 14 | N.Y. App. Div. | 1910

Miller, J.:

The cumulative force of all the reasons urged by the appellant for a new trial at least justifies the conclusion that one should be granted in the furtherance of justice. The negligence complained of was'the employment of the plaintiff by the defendant when she was only thirteen years and six months old, in violation of a statute of the State of Hew Jersey (Laws of 1904, chap. 64), prohibiting the employment of children under the age of fourteen years in any factory, workshop, mill or place where the manufacture of goods of any kind is carried on. The plaintiff was set to work on a mangle and got her arm caught between the rollers of it, whereby the hand and arm were severely burned and the muscles and tendons bruised. It appears in the record that she suffered pain, that the arm is badly scarred and that its condition, whatever it may be, is permanent. There is no evidence whatever to show any loss of function except the testimony of the plaintiff to the effect that, after the accident, she went to a business school for seven months; that she did clerical and office work and typewriting, but that she gave up the typewriting because her fingers did not have power enough to run the machine. The verdict is for $17,500, and there is not sufficient evidence in the record evén to furnish a basis to reduce it.

The plaintiff claims that she was employed and set to work without any inquiry respecting her age. The testimony of the defendant’s forelady, who employed the plaintiff, was that the latter stated, upon inquiry, that her age was fifteen years, and that she appeared to be sixteen, being a tall, well-developed girl. The plaintiff admitted that she kn,ew that a girl had to be fourteen years old to be employed in a factory; that she had undertaken to procure employment for another girl, who was under fourteen, and had told her to say, if she was asked her age, that she was over fourteen. The question whether the defendant was led to believe that the plaintiff was over fourteen years and was justified in so believing was one of the principal questions of fact in the case. (See Koester v. Rochester Candy Works, 194 N. Y. 92.) A photograph of the plaintiff, taken a year before the employment, in the dress worn by her when she received her first holy communion, was admitted in evidence' over the defendant’s objection, upon testimony to the effect that it correctly represented the plaintiff’s appearance at the time of the accident; that she was about the size indicated by the photograph when employed, and that the picture looked as she did when she was employed. We all know that dress alone makes a great deal of difference in the apparent age of a person. The combination of dress and a photograph would be doubly deceptive. When employed the plaintiff was six months below the- age fixed by the statute. A photograph taken a year before, dressed as she was, with veil and flowers on her head, short white dress, white slippers and stockings, was no evidence of her appearance .as to age when employed. The prejudicial character of the photograph' is - manifest. It could have served no possible purpose except to mislead, and its misleading character is the more manifest when we consider that the question at issue was the apparent age of a girl at a rapidly developing period of her life.

In the preliminary examination of the jurors the defendant’s counsel asked" the following question: “ Have any of you gentlemen any objection to a girl being employed in a factory,” and the objection to the question was sustained. While the -latitude allowed counsel in the examination of jurors rests somewhat in the discretion of the court, we think the "question- was proper and should have been allowed. To be. sure, the question was somewhat crude; but there was no difficulty in understanding it, and counsel had the right to ascertain the state of mind of the' jurors on that subject, at least for the purpose of determining whether to exercise his right to a peremptory challenge.

For all the reasons stated the judgment and. order should be reversed and a new trial granted, with costs,to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to ' appellant to abide event.