ANNIE STENSON, as Administratrix, etc., of THOMAS STENSON, Deceased, Appellant,
J. H. FLICK CONSTRUCTION COMPANY, Respondent.
APPEAL by the plaintiff, Annie Stenson, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of August, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.
Rosario Maggio, for the appellant.
E. Clyde Sherwood, for the respondent.
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
in the employ of the defendant about eight months, his first employment being to carry water to the men engaged in the construction work of the defendant and thereafter as a fireman on a locomotive used in the same work and for a period of about three months as a brakeman and spotter. The defendant was engaged in excavating for the construction of the New York, Westchester and Boston railroad, in the borough of the Bronx. Decedent's duties as brakeman and spotter were to ride on the end of the train, observe the track, and signal the engineer if necessary while the train was in motion, and when the train was being loaded to signal the engineer to move and to stop the train in order to place the empty cars opposite a steam shovel. The evidence shows that decedent was an intelligent, healthy, strong boy, and it sufficiently appears that he understood his duties. He was fifteen years, four months and twenty-eight days of age at the time of the accident which resulted in his death. Presumably he understood the risks attending his alighting from the train while in motion, which he customarily did, as on this occasion, when the end of the train of empty cars on which he was riding reached a a point nearly opposite the steam shovel, where the cars were to be loaded. At common law, therefore, the decedent would be presumed to have assumed the risks, and had he lived and been injured he could not have recovered. It is claimed, however, that the defendant in thus employing the decedent violated the provisions of section 289 of the Penal Code, re-enacted by section 483 of the Penal Law, which is as follows:
'A person who,
'1. Willfully causes or permits the life or limb of any child actually or apparently under 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 to be 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
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 A.D. 144; affd., 200 N.Y. 587; Lee v. Sterling Silk Mfg. Co., 115 A.D. 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 case 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 of 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 [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 98, as amd.)
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 ...