185 A.D. 436 | N.Y. App. Div. | 1918
Lead Opinion
The defendant moved for judgment upon the pleadings, consisting of the complaint, the answer, and a reply compelled by the defendant. The affirmative allegations of the defendant in the third defense pleaded, concerning the business carried on by it, the nature of the plaintiff’s work in the defendant’s factory, and the happening of the accident, amplify to some extent the formal allegations in the complaint. All of these allegations are, therefore, to be considered in passing upon the questions presented by the appeal. The complaint alleges, and it is admitted and affirmatively alleged in the answer, that defendant is a corporation engaged in the business of manufacturing burlap and cotton bags in Brooklyn, N. Y., maintaining and operating power presses; that on December 18, 1916, the plaintiff was working as an operator on one of defendant’s said presses, and that she sustained accidental personal injuries while so employed by having her hand crushed and amputated in the press. The complaint alleges that on the day the accident happened, the plaintiff was under the age of sixteen years; that the infant plaintiff was employed by the defendant to operate the machine; that her injuries were caused by the negligence of the defendant and without negligence on the part of the plaintiff. It charges that the employment of plaintiff was unlawful, and that defendant had failed to procure an employment certificate provided for in the Labor Law. It is also alleged in the complaint that the machine at which plaintiff was working had no guard as required by statute; that it was the duty of defendant to provide the plaintiff with a reasonably safe place to work and a reasonably safe machine with which to perform her work, and that defendant failed and neglected to perform its duty and allowed the machine to become dangerous and defective in that it was not equipped with any proper or sufficient guard. The plaintiff, in addition, alleged facts showing liability of defendant under the so-called employers’ liability sections of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], §§ 200-204, as amd. by Laws of 1910, chap. 352), and alleges service upon defendant of the notice required by that statute. The plaintiff, directed to reply to the new matter set up as a defense (Code Civ. Proc. § 516),
We reach the conclusion that the Workmen’s Compensation Law is not a bar to the infant plaintiff’s common-law action for damages. Her employment in the defendant’s factory on the day of the accident was unlawful; the defendant had no right to employ her, and in doing so it was guilty of a misdemeanor. (Penal Law, § 1275.) There can be no mistake as to the positive provisions of the law of this State in force at the time of the accident. The Labor Law contains the following:
“ § 2. Definitions. Employee. The term * employee,’ when used in this chapter, means a mechanic, workingman or laborer who works for another for hire. * * *
“ § 70. Employment of minors. No child under the age
“ § 93. Prohibited employment of women and children. 1. No child under the age of sixteen years shall be employed or permitted to work in operating or assisting in operating any of the following machines: * * * job or cylinder printing presses having motive power other than foot.” (See Laws of 1913, chap. 529, amdg. said §§ 2, 70, and Laws of 1913, chap. 464, amdg. said § 93.)
And it is provided in section 81 of the Labor Law (as amd. by Laws of 1913, chap. 286) that “ machinery of every description shall be properly guarded and provided with proper safety appliances or devices. All machines, machinery, apparatus, furniture and fixtures shall be so placed and guarded in relation to one another as to be safe for all persons.” Violation of the statute is evidence of negligence in an action such as this, based upon the allegation that the defendant failed in the duty it owed to the infant plaintiff while she was in the factory, whether her employment was legal or illegal. The object of these statutes and the policy of the State with reference to the employment of minors have been repeatedly stated. (Marino v. Lehmaier, 173 N. Y. 530; Koester v. Rochester Candy Works, 194 id. 92; Amberg v. Kinley, 214 id. 531.) In employing this child under sixteen years of age to work upon its power press, defendant violated the public policy of the State as declared by the foregoing statutes. We think that in enacting the Workmen’s Compensation Law with reference to the rights and remedies of employers and employees, the Legislature referred to legal employment. To construe the law as permitting an employer who has employed children illegally in work expressly forbidden bylaw, to insist that they are deprived of their common-law rights and must look to the Workmen’s Compensation Law for relief, would be to nullify the provisions of the Labor Law and to disregard the public policy of the State. In
The New Jersey act contains a provision not found in the New York statute, by which workmen may elect whether they will accept the benefits of the law. In the case at bar there is no evidence that the parent consented to or was consulted about the employment, because it is alleged that no working papers were required by or filed with the employer. In Robilotto v. Bartholdi Realty Co. (104 Misc. Rep. 419) Mr. Justice McAvoy at Special Term, expressing the opinion that the common-law action survived in a case of unlawful employment of a child, felt constrained to decide contrary to his individual judgment by the decision in Ide v. Faul & Timmins. If the constitutionality of the Workmen’s Compensation Law in depriving a laborer of his right to trial by jury of his claim for damages against an employer is sustained because of modern industrial conditions, and upon the theory that employer and employee are presumed to have had the law in mind, “ since they voluntarily engage in it [i. e., the employment] as co-adventurers, with personal injury to the employee as a probable and foreseen result” (New York Central R. R. Co. v. White, supra, 205) such reasoning does not apply to the unlawful and prohibited employment upon a- dangerous machine of a child under sixteen years of age.
It follows that the order granting defendant’s motion for judgment upon the pleadings was erroneous, and that the judgment entered in pursuance of such order should be reversed.
The order granting defendant’s motion for judgment upon the pleadings should be reversed, with costs and disbursements, and motion denied, with ten dollars costs. The judgment entered upon such order dismissing the complaint is
Mills, Putnam and Jaycox, JJ., concurred; Thomas, J., concurred for reversal in separate memorandum.
Concurrence Opinion
I concur for reversal upon the ground that upon the facts presented the violation of the statute was the proximate cause of the injury (Amberg v. Kinley, 214 N. Y. 531), and upon the trial the question of proximate cause and damages was for the jury. The question of negligently guarding the machine is inconsistent. The defendant could not become a master, and is liable whether the machine was or was not guarded, if it put the girl to work on it in violation of the statute. I concur with Mr. Justice Kelly’s discussion and conclusion as to the Workmen’s Compensation Law and its non-applicability.
Order reversed, with costs and disbursements, and motion denied, with ten dollars costs. Judgment reversed, with costs, and case remitted to the Supreme Court for trial.