Crowley v. American Druggists Syndicate — 152 A.D. 775

Majority

p. 775

Annie M. Crowley, an Infant, by Michael Crowley, Her Guardian ad Litem, Respondent, v. American Druggists Syndicate, Appellant.

Second Department,

October 11, 1912.

Headnote

Master and servant — employment of girl under fifteen years of age without certificate — injury from defective machine — evidence — negligence — contributory negligence —verdict.

In an action by a girl under fifteen years of age, employed by defendant to operate a machine used to form and fasten pasteboard boxes, to recover for injuries sustained, it was shown by satisfactory evidence that the plaintiff was employed without having obtained an employment certificate, that the defendant furnished an unsafe and defective machine for her to operate, that the accident occurred in consequence of its defective condition, and that the defendant was negligent and the plaintiff free from contributory negligence.

Held, that a verdict for $2,250 was not excessive.

Burr and Carr, JJ., dissented, with opinion.

p. 776

Appeal by the defendant, the American Druggists Syndicate, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of Queens on the 15th day of March, 1912, upon the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the 15th day of April, 1912, denying the defendant’s: motion for a new trial made upon the minutes.

Stephen P. Anderton [S. Stanwood Menken and William J. Grace with him on the brief], for the appellant.

John B. Merrill, for the respondent.

This appeal is from a judgment in favor of the plaintiff, and from the order denying defendant’s motion for a new trial in an action for negligence. It appears that the plaintiff, a little girl under fifteen years of age, was employed by defendant to operate a machine used to form and fasten pasteboard boxes. Upon the trial it was shown by satisfactory, evidence which the jury believed, that plaintiff was employed without having obtained an employment certificate, and that the defendant furnished an unsafe and defective machine for her to operate, and that the accident occurred in consequence of its defective condition.

The question as to whether defendant was justified in believing that plaintiff was sixteen years of age was submitted to the jury, who have found the defendant negligent and the plaintiff free from contributory negligence.

The verdict is not excessive, and the judgment and order must be affirmed, with costs.

Hirschberg and Thomas, JJ., concurred; Burr, J., read for reversal, with whom Carr, J., concurred.

I dissent.' Plaintiff, whose testimony is uncorroborated, is clearly a discredited witness. But assuming her testimony to be true, she Was guilty of contributory negligence. She knew that the plunger sometimes repeated when her foot was not on the treadle. She knew that if it came down when her

Dissent

p. 777

hand was on the anvil she would be hurt. Notwithstanding this, she deliberately placed her hand on the anvil in order to remove a box which had caught, when she could have used a hook which had been furnished for the purpose of removing boxes under such circumstances and which was there convenient to her use.

Carr, J., concurred.

Judgment and order affirmed, with costs.