194 N.Y. 92 | NY | 1909
The action is brought, servant against master, to recover damages for personal injuries caused by the defendant's negligence. The complaint charged the defendant, which conducted a candy factory, with employing the plaintiff, who at the time was an infant under the age of fourteen years, in the operation of dangerous machinery in violation of section 70 of the Labor Law (L. 1897, ch. 415), and that the machinery was not protected by proper safeguards as required by section 81 of that law. The answer put in issue the extent of the plaintiff's injuries and the other allegations of the complaint, except plaintiff's employment and the character of the business carried on by the defendant. The plaintiff recovered a verdict at the Trial Term, which has been affirmed by the Appellate Division by a divided court.
On the trial evidence was given by the plaintiff's parents as to the date of his birth, which established that at the time of the accident he was a few months less than fourteen years of age. The defendant gave evidence to the effect that when the plaintiff sought employment he represented that he was more than sixteen years old. In submitting the case to the jury the learned trial judge charged: "If you find that plaintiff did in fact make this statement as to his age, then you are further to inquire and determine whether defendant's agent Colebrook was justified in relying, as he says he did, upon that statement, or whether in the exercise of reasonable prudence and caution before actually hiring the plaintiff he should have made further inquiry and received further assurance and proof of the fact. If he was not justified in relying solely upon plaintiff's representation as to his age, aided by his observation of the personal appearance of the boy, if you find he made such representation, if there was in his appearance or in any other fact coming then to the attention of this agent of defendant which has been disclosed by the evidence, which would naturally have led him to suspect that plaintiff was not telling the truth about his age, and would have led an ordinarily prudent person to make further inquiry on that subject before actually hiring the plaintiff, then those *95 facts are to be considered by you and given their due weight in determining whether or not this agent actually believed and was justified in believing the statement plaintiff made as to his age." This was the whole of the court's instructions on the question. The defendant requested the court to charge, "if the plaintiff falsely stated his age to the officers of the defendant and led them to believe that he was actually over fourteen years of age at the time he was hired, and if they were justified in that belief, then they are not guilty of negligence in hiring him, and the jury must dismiss that provision of the Labor Law from further consideration." This the court refused. The defendant thereupon excepted and that exception presents the first question for our consideration.
The Labor Law makes a violation of its provisions a misdemeanor, but does not give a civil remedy therefor to the party injured. Nevertheless it was held by this court in Marino
v. Lehmaier (
On the trial the plaintiff did not testify in his own behalf as to his age. The question, however, was asked him by the defendant on cross-examination. His testimony was in accord with that given by his parents. For the defense it was sought to prove various declarations made by the plaintiff as to his age. That made to the defendant at the time of his employment was admitted, but those made to third parties at other times were excluded. The ruling is sought to be justified by the learned counsel for the respondent on several grounds. It is first claimed that a person is not a competent *97
witness as to his own age, and, therefore, his declarations to that effect are also incompetent. While I can find no express decision in this state that a witness may testify to his age, as far as my experience goes the practice has been universal to permit such testimony, and I have never heard its competency challenged. The question has been, however, the subject of determination in many other states and the authorities seem to be uniform that the witness is competent. (Hill v. Eldridge,
But even were the witness incompetent to testify to that fact from lack of personal recollection as to his birth, it would not justify the exclusion of his admission on the subject when offered in behalf of the opposite party. In Reed v. McCord
(
It is sought to justify the ruling of the trial court on the further ground that the defendant by examining the plaintiff as to his age made him its own witness and could not impeach him. The limitations of the rule which forbids a party to impeach his own witness (assuming the plaintiff to have been such, which we do not decide) are well settled. He may not thereafter introduce witnesses to prove that his general reputation is bad and that he is unworthy of credit, nor can he prove statements made out of court in contradiction of his testimony on the stand, and he cannot contradict him as to collateral facts. But he may prove by competent testimony that the facts material to the issue are the exact reverse of those testified to by his witness, and may ask the jury to disbelieve his statement, and credit that of the later witnesses. When, *98 however, it is said that one cannot impeach his own witness by contradictory statements made out of court, this statement must be limited to the case of a witness who is not the adverse party. The effect of such contradictory statements in the case of other witnesses is merely to impeach the witness because they are mere hearsay and are not proof of the fact stated. The case of an adverse party is the exact reverse. "In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made" (Reed v. McCord, supra, at p. 341), excepting, of course, confidential communications the disclosure of which is prohibited by statute, such as from client to counsel, from patient to physician, from penitent to clergyman or priest, and the like.
The cases relied upon by the learned counsel for the plaintiff as asserting a contrary doctrine are not in point. In Thompson
v. Blanchard (
The judgment should be reversed and a new trial granted, with costs to abide the event.
EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK and CHASE, JJ., concur; WERNER, J., not sitting.
Judgment reversed, etc.