Lee v. Sterling Silk Manufacturing Co. , 118 N.Y.S. 852 ( 1909 )

Jenks, J.:

The first appeal herein is reported in 115 Appellate Division, 589. In the opinion I considered the various decisions pertinent, including those of our highest court, and I sought to deduce the rule as declared by that court. I adhere to the opinion therein expressed, and. for the treasons then given. I add only citation of Koester v. Rochester Candy Works (194 N. Y. 92, 95).

Upon this appeal it is urged that the learned court erred in dealing with the following request made by the plaintiff for an instruction: “I ask your honor to charge the jury that the employment of a boy under the age of fourteen years is some evidence of negligence, independent of any other negligence. Then, was he guilty of contributory negligence in obtaining this employment, in being set to work ? If he was not, and the jury so find, and the defendant was negligent in employing him contrary to the statute, the defendant is liable, and the jury must render a verdict for the plaintiff. Declined other than as charged. Exception.” The first sentence of the request is a correct statement of the law (Lee v. Sterling Silk Mamifacturing Co., 115 App. Div. 591, and authorities then cited), but the other part of the request is bad, in that it confines the question of contributory negligence to the obtaining of employment, whereas the doctrine of contributory negligence is not thus limited in such an. action (Lee v. Sterling Silk Manufacturing Co., supra, and authorities cited), and the question whether the lad’s negligence contributed to the accident was presented by the testimony in this case. The plaintiff alleged that the lad was thirteen years old when he entered upon employment, hence there was no jjresnmption then that he was non sui juris (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 365, citing Tucker v. N. Y. C. & H. R. R. R. Co., 124 id. 308), and there was no contention that he was not chargeable with the care and prudence commensurate with one of his years. One of the lad’s fingers was caught in the cog wheels of a machine. He testifies that he knew the danger of such contact, but that the cog wheels connected with the machine at which he worked, unlike all others in the factory, were uncovered, that he discovered a loose spindle, and when he attempted to stop it his finger slipped between the wheels. The defendant showed by former employees that these wheels were covered like the others; that the lad was frisking and sought to look out of a window; that lie removed the.tin cover of the cog wheels for easier access to the window; that he then climbed up on the steam pipes and while doing so his hand slipped into the cog wheels which he had himself uncovered for this idle purpose. It cannot be said that there was no question of contributory negligence presented by this evidence. Hence this request was faulty and the court was not required to take away the good part of it from the bad and to charge the good. (Hamilton v. Eno, 81 N. Y. 127.) I do not understand from the colloquy at the close of the evidence that the only,question to be submitted to the jury was the age of this lad. Whatever the respective counsel said, the court ruled that the application of the “ Labor Statute ” was to be limited to so much of section 70 thereof as relates to employment of one under 14 years of age, but it did not intend to submit the question of such an employment only to the jury, and it did not, as the charge indicates beyond all question.

It is urged that the court erred in excluding the certificate of birth. The record in full reads that the plaintiffs counsel, after examination of the mother, who testified to the birth of her son, said : “ In corroboration I offer the certificate of birth. [Objected to as incompetent and irrelevant. Objection sustained. Exception.] ” We are not informed by the record as to what the learned counsel meant by “ certificate of birth.” It does not appear where the lad was born in 1890, but if we should assume that he was born in this State and that by the term “ certificate of birth ” the counsel meant the legal certificate contemplated by the general statute then in force (Laws of 1888, chap. 309, amdg. Law's of 1885, chap. 270, § 3, subd. 5), it does not appear that the alleged certificate of birth was that contained in any record or that it was a copy duly attested, or that it was a verified transcript in compliance with the requirements of the said statute or admissible under section 933 of the Code of Civil Procedure. We are in complete ignorance, for the alleged certificate was not even marked for identification. In Rogers v. Jackson (19 Wend. 385) the court say: “ Hothing is clearer than that where proofs by certificate and the like, are by statute substituted for common-law evidence, all the forms directed by the statute, whether preliminary or substantial, must be strictly complied with.” In view of the discussion in Beglin v. Metropolitan Life Ins. Co. (173 N. Y. 376) there is serious question wdiether such a certificate is competent in such an action, although the court in Davis v. Supreme Lodge, Knights of Honor (165 id. 168) intimates that such record might be admissible. But see our judgment in Maher v. Empire Life Insurance Co. (110 App. Div. 727). It was not improper to permit the superintendent of the defendant to testify as to the interview with the lad when he sought employment, that lie asked the lad his age and that the lad said he was 15 years old. The action, as I have said, is for negligence. The plaintiff complained that the defendant employed this lad when under the statutory age, and gave evidence as to his age. This evidence was, therefore, competent, relevant and material.

The judgment is affirmed, with costs.

Woodward and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom IIirschberg, P. J., concurred.