Gorman v. McArdle

This action was brought on account of injuries received by plaintiff on September 9, 1889, in jumping from a fourth story window of defendant’s manufacturing establishment, where he was employed, during a fire which consumed the building — defendant having negligently omitted to provide a proper fire-escape. In fact, there was no fire-escape as prescribed by statute, but a window in the room where plaintiff was employed opened on to the flat roof -of defendant’s adjoining 'building and from this roof through a scuttle there was, as defendant claimed, a proper and safe access to the street for his employees and a proper escape from fire.

It is not seriously denied that defendant was carrying on a manufacturing establishment within the meaning of chapter 560, Laws of 1889 (amending chapter 409 of the Lawstof 1886, as amended by chapter 462, Laws of 1887), or that the provisions of that statute applied to him, although a lessee and not the owner of the building in question.

The case of Pauley, as Administrator v. Steam Gauge and Lantern Company ( 131 N. Y., 90 ) holds that the act above referred to imposed a duty on the owners or occupants of the prescribed class of factories, for an omission to perform which, operatives injured, because thereof, may recover damages. In the case cited the owners of the factory had provided a proper fire-escape, under the statute, to the floor on which plaintiff’s intestate was at work, but, • instead of providing statutory stairs or a ladder on the inside, from the upper story of the building to the roof, as provided by the act, they conducted the fire-escape on the outside up to the roof by stairs thus affording, as the court held, as safe and convenient an access to the roof as a ladder or stairs on the inside. The outside stairs to the roof, although not a literal compliance with the statute, was held by the Court of Appeals sufficient. The effect of this decision, therefore, is to determine that only a substantial compliance with the statute is necessary. Kence in the case before us, although defendant failed to place a fire-escape on the outside of the building according to the terms of the statute, if he, in fact, provided for the operatives working in the room on the fourth floor where plaintiff was employed an equally safe and convenient escape in case of fire over the roof of the adjoining building, he is not negligent and not liable in this action.

This view was taken by the trial judge, and on examining his. charge carefully I am unable to discover any error in his presentation of the case to the jury. There was testimony tending to show that operatives on the fourth story were told of the way of escape, in case of a fire, over the roof of the adjoining building, plaintiff and some others, however, testifying that they never received such information. Whether they did or not was a question of fact. If they were told of this way of leaving the building in case of fire, it was then a question of fact whether it was as safe and convenient as the statutory fire-escape, a copy of the statute in reference to fire-escapes being also posted in the room as the law provides. The

It will thus be seen that the coiu’t su^mitied the question to the jury in the language and as requested by counsel for defendant. I am unable to see any error in the submission of these questions of fact to the jury.

There was some evidence that, at the time of the fire, the only door leading to the room on the fourth floor where plaintiff was employed was locked, and that plaintiff and others were unable to escape through it. There was a conflict of evidence in this regard, which was properly submitted to the jury. The court remarked that it was the “ stafottory” duty of the defendant to keep the door unlocked at all times during business hours. Perhaps the use of the word “ statutory ” was not correct. But clearly it was defendant’s duty, while his employees were at work in the room on the fourth story, to keep the door unlocked, and I fail to see how the use of the word ‘'statutory” in the charge could have injured defendant. However, the judge afterwards fully explained the matter to the jury —that to make defendant liable in consequence of the door being locked, if they should determine it was locked, they must find that, if unlocked at the time of the fire, plaintiff could have escaped through that way. Hence no error was committed to the injury of the defendant.

It is urged by the appellant, that plaintiff, having a mode of escape provided for him onto the roof of the adjoining building, easy to be seen, and over which almost all the operatives employed in the room at the time of the fire escaped, was guilty of contribu

It is claimed that plaintiff, knowing that no fire-escapes were provided, voluntarily, and with knowledge of that fact, continued at work, and hehce assumed the risk of an accident by fire as incident to the employment. This position does not appear to have been taken upon the trial, and hence it is questionable whether it should be considered on this appeal.

The burden was on the appellant on the trial to show that the risk of working in the room not provided with fire-escapes was voluntarily assumed by plaintiff as incident to his employment. (Mayes v. The Chicago, R. I and Pacific R. R. Co., 63 Ia., 566 .)

My attention has not been called to any evidence showing certainly that plaintiff knew there was no fire-escape, or that his attention was ever called to that subject. The risks that an employee assumes as incident to his employment are such as he knows of or as are apparent. Plaintiff’s employment was within the defendant’s room on the fourth story. The fire-escape should have been on the outside of the building. Plaintiff’s employment did not call him on the outside, and while it is not unlikely that he might have examined to see whether fire-escapes were provided outside, it is not certain that he did so. He was not bound to so examine, and could

Therefore, although plaintiff had been employed by defendant for a year it was not certain that his attention had been called to the absence of fire-escapes, and hence whether, as incident to his employment, he assumed the risk of injury from a fire caused by such absence, was a question of fact. The case would have been ■different had an accident occurred on account of some danger in plaintiff’s employment on a machine used by him in the business, •or some apparent danger in the room where plaintiff worked incident to his employment. There is, I think, a distinction between cases referred to by appellant and this case.

Gibson v. Erie Railway Company ( 63 N. Y., 449 ) was an action to recover damages for the death of a brakeman, who, riding on the top of a car, was struck and killed by the projecting roof of defend-íante depot building. There the employment of the deceased was ■on the top of freight cars drawn from day to day by the projection .in question. The deceased brakeman’s attention was necessarily ■called to the projection on the building as a risk incident to the ■business he was carrying on. It was the same as if he had been ■called on to work in a room where a dangerous piece of machinery, as, for instance, a circular saw was placed. Each of the other ■authorities, commented upon by counsel for appellant in his brief, are similar to the case last cited, and cases where the risk the injured party was held to have assumed was one immediately connected with the business in which he was engaged; a risk that was plainly apparent and necessarily assumed.

In this case, however, plaintiff was engaged in the business of picking and assorting rags in the defendant’s building on the fourth floor. His business was on the inside and he had no connection with the fire-escape. He was not called upon to examine the outside of the walls. It is not proved that his attention was ever called prior to the fire to the question of the fire-escape.

I will not attempt to discuss tlie many authorities that might be considered on the subject of the risk assumed by an employee as incidental to his business. It has been held that the risk so assumed does not include risks caused by the negligence of his master in

I think the position of appellant, that the repeal by chapter 398, Laws of 1890, of the statute requiring fire-escapes, prevents plaintiff from maintaining the action, is not sound. It is true, that when a statute gives a penalty, or expressly creates a cause of action, a repeal of such statute may extinguish any right of action existing thereunder. But section 10 of the act requiring fire-escapes, created no right of action, and prescribed no remedy to be recovered in an action. It made it the duty of the proprietor of a manufacturing establishment to maintain fire-escapes, and a failure to perform this statutory duty has been held by courts to be a negligent act, and that an employee injured by such negligent act may maintain an action for damages. The repeal of the statute does not extinguish plaintiff’s right of action for an injury caused by defendant’s negligent omission to provide fire-escapes as prescribed by the statute. The authorities cited by defendant are where a penalty is given, or a cause of action expressly created' by statute, in which cases it is held that a repeal of the statute extinguishes a right of action thereunder. Plaintiff, in this case, did not claim a penalty or sue for a cause of action created by a statute, but for a negligent act of the defendant under the law as it stood when he was injured, and the repeal of that law does not effect his vested right of action. (Van

The judgment should be affirmed, with costs.

Mayham, P. J., concurred; HeeRICK, J., not acting.

Judgment affirmed, with costs.