Freund, Proctor and Rogers. The opinion of the court was delivered by Freund, J.s.c.
This action was brought to recover damages, by the plaintiff, Charles Edward Ludwig, a minor, 13 years of age, for injuries he sustained, and by his father, for medical expenses and loss of services. The appeal is from a judgment of dismissal entered in favor of the defendants, Bohne and Sylstra, upon the plaintiffs' opening to the jury; and in favor of the defendant, Kirby, at the conclusion of the plaintiffs' case. The Ludwig boy was assisting in the unloading of hay from an automobile truck and fell upon a concrete pavement. The action against all three defendants was based upon an alleged violation of the Child Labor Law, R.S. 34:2-21.1 et seq. , and against Kirby, upon negligence as an additional cause of action.
Sylstra is the owner of a farm in Wyckoff, New Jersey, and Kirby is a dealer in hay. On August 4, 1949, Kirby was delivering two truckloads of hay to the Sylstra farm. One load
was on a trailer-truck owned by Kirby, and the other, on a truck owned by Bohne. On two prior occasions, the Ludwig boy had assisted Kirby in unloading hay for Sylstra, and each time had received 50 cents. On the morning of the accident, he was near the farm and saw the trucks approaching. He testified:
"Well, I went up to the barn after I saw the truck go up there, and I thought maybe I might be able to earn a little money, because I was going away in a couple of weeks. I wanted to have a little spending money for my trip. So I went up there and asked Mr. Kirby if I could help him work. * * * He said yes. He gave me permission. * * * He said it would be permissible; I could."
It was drizzling and Kirby decided to unload the Bohne truck first. It was backed into position against the barn, where an electric conveyor extended from the opening in the barn on to the front of the truck. The driver of the Bohne truck, Bird, placed the bales of hay on the conveyor, which carried them into the barn, where Kirby and Bohne received them. The plaintiff was helping to move the bales on the truck to enable Bird to place them on the conveyor, and for this purpose he was using a steel hook. He testified:
"I would get the hook into the bale, then pull the bale out of its position, and move it toward the conveyor, so that Mr. Bird could put it on the conveyor and then (it) could be put into the hay loft, where Mr. Bohne and Mr. Kirby were."
The plaintiff said the bales "were wet and heavy and hard to handle." Each bale measured about 1 1/2 feet by 3 feet, and there were five layers of bales stacked on the truck. While trying to move one of the bales, the Ludwig boy was injured when the hook slipped and he fell backwards eight or nine feet off the truck down to the concrete pavement.
The complaint charged that "the defendants herein employed, permitted and suffered plaintiff to work in, about and in connection with power-driven machinery and hoisting apparatus in violation of the Child Labor Laws of the State of New Jersey." The second paragraph of the complaint alleged
that the plaintiff's injuries were sustained "as a result of the negligence of all of the defendants herein and their violation of the laws and statutes of the State of New Jersey." There is no specification of the acts constituting negligence, either in the complaint or in the pre-trial order, other than the foregoing charges that the plaintiff, a minor, was employed or allowed to work as above-described, allegedly in violation of the Child Labor Law, R.S. 34:2-21.17. However, in his opening to the jury, the plaintiff's counsel said: "In addition to that (Child Labor Law), we will show you that Mr. Kirby employed the boy, violated the duty of an employer to the boy, who hires young, inexperienced children to do work that is essentially dangerous." On the argument for dismissal on plaintiffs' opening, plaintiffs' counsel said: "Now, as to Kirby, I think we have two causes of action: First, as his employer. Now, an employer has a common law duty to his servant to provide a safe place to work in, safe appliances, and safe conditions, and especially is that true when he employs young help or inexperienced help." And, finally, on the argument at the close of plaintiffs' case for direction of a verdict and judgment for Kirby, the plaintiff contended that the work performed by the Ludwig boy, an inexperienced person, constituted a dangerous occupation; that the defendant failed to provide a reasonably safe place for the boy to work; and that the facts presented a jury question. The court, however, ruled to the contrary.
The questions presented and argued on this appeal are: (1) Did the defendants violate the provisions of the Child Labor Law of New Jersey; and (2) Was a jury question presented ...