Stehle v. Jaeger Automatic Machine Co. , 220 Pa. 617 ( 1908 )

Opinion by

Mr. Justice Elkin,

The error which ran through the whole trial in the court below was failure to give effect to the Act of May 2, 1905, P. L. 352. The case was tried under the rules of law applicable to cases of negligence where master and servant, both being competent to enter into a contract of employment and each presumably capable of appreciating the dangers thereof, are charged with the duty of exercising due care, the master in providing reasonably safe appliances and machinen'-, and the servant of using ordinary care to avoid open and obvious dangers. These rules have no application to the facts of the present case. The boy appellant was born June 6, 1892; was first employed by appellee company in April, 1905 ; and was injured January 27, 1906, being at the time of the injury under fourteen years of age. Section 2 of the act of 1905, provides that no child under fourteen years of age shall be employed in any establishment to which the provisions of the statute apply, and section 1 requires that “ no minor under sixteen years of age shall be permitted to clean or oil machinery while in motion or to operate, or otherwise have the care or custody of, any elevator or lift.” It seems to be conceded that the place where the boy worked was an establishment within the meaning of the act, and hence the case must be considered in the light of the statute regulations and requirements. That the legislature, under its police power, has the authority to enact such legislation is not an open question in this state. In the recent case of Lenahan v. Pittston Coal Mining Company, 218 Pa. 311, we held that it was within the power of the legislature to fix an age limit below which children should not be employed in dangerous kinds of work, and that an employer who violated the law by engaging a child under the stautory age did so at his own risk, and in an action of trespass for personal injuries sustained in such employment the master cannot set up as a defense either the assumption of risk or the contributory negligence of the child servant. This seems to be the rule adopted by the courts of other jurisdictions as well as our own: Sipes v. Michigan Starch Company, 100 N. W. Repr. 441. The suggestion made by the learned counsel for appellee that a violation of section 2, which prohibits the employment of children under fourteen years of age, can only be punished as a misdemeanor as provided in section 23, cannot be accepted as a sound rule of law. It is true the statute is penal, and violations of its provisions, upon conviction, are punishable by fine or imprisonment, but these remedies are not exclusive and do not supersede the right of action for damages in a civil proceeding: Narramore v. Railway Company, 96 Fed. Repr. 298 ; Railroad Company v. Lambright (Ohio), 29 W. Law Bulletin, 359. Whether the employment of a child in a haz-' ardous occupation, when such employment is prohibited by law, is negligence per se, or only evidence of negligence to be considered in connection with other facts tending to show negligence, the authorities are not entirely agreed, but for the purpose of the present case we hold that the employment of the boy under fourteen years of age to do any kind of work in the establishment, prohibited by section 2, and of his having been employed to clean or oil machinery while in motion, prohibited by section 4, were both questions of fact to be submitted to the jury as evidence of negligence, and if the injury resulted by reason of the employment prohibited by law there can and should be a recovery in the case. In the view thus taken of the act of 1905, it is not important to consider the assignments of error relating to the duty of an employer to properly instruct a young and inexperienced employee in the use of dangerous machinery. As to the prohibited employment the master is not relieved by giving instructions.

We do not consider it necessary to consider in detail the numerous assignments of error, because they nearly all relate wholly or in part to the force and effect to be given the act of 1905, and with this fundamental and controlling question now settled, no difficulty will be experienced in the proper application of the rules of law applicable thereto when the case is again tried.

Judgment reversed and a venire facias de novo awarded.