Kircher v. Iron Clad Manufacturing Co. , 118 N.Y.S. 823 ( 1909 )

Gaynor, J.:

No one saw the accident happen, and there is no evidence showing what caused it. There was nothing the matter with the elevator or its machinery. The defendant was prohibited by section 162 of the Labor Law from employing any one under 16 years of age in its mercantile establishment, without a certain certificate of the health authorities, and the deceased was between 14 and 15 and no such certificate had been issued. The rule applicable seems to be the same as that applicable to section 70 of the Labor Law, which is a similar prohibition against employing children to work in factories. IInder this rule “ the gist of civil liability is the negligence of the master in employing a person of such tender years that the Legislature has forbidden his employment”, and to relieve the employer from such imputation of negligence the jury must be able to find that “ the employer believed, and was justified in the belief, that the employee was of the prescribed age for work ” (Koester v. Rochester Candy Works, 194 N. Y. 95). That is to say, the émployment in and of itself makes out a prima facie case of negligence against the employer, and he has to rebut it by showing justification for believing the employe to be of the lawful age. That question went to the jury in this case, and was found against the defendant on sufficient evidence. The question whether the defendant sufficiently instructed the deceased was also litigated and sent to the jury. It is not" easy to see how the question of failure to instruct can be in a case where the employer is liable by the mere fact of wrongful violation of the statute, but no one is in a position to raise it here. Nothing can be gained, it seems to me, by a review of the decisions in this state under this and similar statutes. The one already cited, and that in Marino v. Lehmaier (173 N. Y. 530), seem to be decisive. It is strongly urged for the defendant that a nonsuit should have been granted for the reason that there was no evidence showing that the deceased was free from contributory negligence; but it was held in the Marino case that that power was. taken away from the court by the effect of the statute. The IGoester case confirms this, and further that the unlawful employment makes out a prima facie case for the plaintiff.

The judgment should be affirmed.

Hirschberg, P. J., Rich and Miller, JJ., concurred in result, Burr, J., read for reversal.