130 N.Y.S. 555 | N.Y. App. Div. | 1911
This is a statutory action to recover for the death of Thomas Stenson, which occurred on the 9th day of February, 1907, while he was in the employ -of the defendant, and in the act of alighting from a car on which he was riding in the performance of his' duties as a brakeman and spotter. He had been
“ A person who,
“1. Willfully causes or permits the life or limb of any child actually or apparently finder the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved; or,
“ 2. Willfully causes or permits such child to be placed in such a situation or to engage in such an occupation that its life or limb is endangered, or its health is likely tobe injured, or its morals likely to be impaired; is guilty of a misdemeanor.
“ 3. Any parent or guardian or other person having custody of a child under sixteen years of age, except in the city of. ' New York who omits to exercise due diligence in the control*68 of such child, to prevent'such child from, violating any of the provisions of this chapter and any such person or any other person responsible for or who by any act or omission causes, encourages or contributes to the violation by any such child of said provisions shall be guilty of a misdemeanor and punishable accordingly.”
It has been held in many cases that the violation.of a statute is some evidence of negligence and that in the case of children of immature years the question of contributory negligence and assumption of risk would then also be for the jury (Kircher v. Iron Clad Mfg. Co., 134 App. Div. 144; affd., 200 N. Y. 587; Lee v. Sterling Silk Mfg. Co., 115 App. Div. 589; Koester v. Rochester Candy Works, 194 N. Y. 92; Marino v. Lehmaier, 173 id. 530); but,.as will be seen presently, it does not follow that every ease of a violation of a statute gives rise to a cause of action for negligence for injuries caused thereby. It is contended in behalf of the respondent that the mother of the decedent, who brings this action as his administratrix, induced or acquiesced in his employment and that, therefore, the action cannot be maintained. There is no force in this contention. The action is not for her benefit, but for the benefit óf the next of kin of the decedent. (Code Civ. Proc. §§ 1902, 1903.) He died unmarried and without issue. . She is one of the next of kin but not solely entitled to a recovery, for he also left six brothers and sisters. (See Code Civ. Proc. §§ 1870, 1905, 2732; Decedent Estate Law [Gonsol. Laws, chap. 13; Laws of 1909, chap. 18], §, 98, as arad.)
There is no evidence that the defendant knew the age of the decedent, or as to his appearance with respect to age. It is very doubtful whether a criminal prosecution could be sustained under the statute quoted on mere proof of the facts that the boy was employed in a dangerous occupation and was a few months under sixteen years of age, without evidence of his appearance with respect to age, or notice or knowledge of his age on the part of his employer other than would be gained from his appearance. We are not, however, required to decide whether a criminal prosecution could be sustained on this evidence, but only whether in view of the statute the evidence is sufficient to take the case to the jury on the question of
It follows that the judgment should be affirmed, with costs.
Ingraham, P. J., and McLaughlin, J., concurred; Miller and Dowling, JJ., dissented.
Judgment affirmed, with costs.