
    McALPIN v. POWELL.
    
      City Court of Brooklyn; General Term,
    
      September, 1876.
    Fire Escape.—Negligence of Landlord.
    A fire escape required by law to be erected and kept in repair, is, in case of defects in its condition, a dangerous structure within the rule rendering an owner liable to one injured thereby.
    The owner of a building is liable for injury sustained by one of the family of a tenant of an apartment by going without negligence upon a defective balcony of a fire escape, upon which the windows of the apartment open.
    
    Appeal by defendant from a judgment for §1,186.24, entered in March, 1876, upon the verdict of a jury, and from an order denying a motion fora new trial.
    This action was brought by James McAlpin, as administrator of his son, John McAlpin, to recover damages for the death of the latter, when nearly ten years of age, caused by his fall through a fire escape on the premises of the defendant, Rebecca B. Powell, which the plaintiff occupied as tenant.
    The plaintiff, a shoemaker, occupied the third floor of the house, and used the back room as a work-shop. The window of this room was low, and opened on a fire escape, which was about six feet long, by three feet and a half wide, and protected by a railing, about three feet four inches high. At one énd was á trap-door, which gave access to the ladder below, and was so arranged as to turn upwards on hinges. These hinges had become rusted, and were fastened with a small wire and a string, and were in this condition when the premises were rented to the plaintiff, but he had not noticed them unsafe condition. On the afternoon of August, 1875, the deceased stepped out of the window upon the platform of the fire escape, which was about fifteen or sixteen inches below the window sill, and having walked to the end in which the trap-door was, while he was standing upon this, it gave away, and , he fell to the ground and was killed.
    The defendant was not aware of the insecure condition of the fire escape.
    The case was tried before Chief Justice Neilsotst and a jury, February 25, 1876. After plaintiff’s testimony had been given, the defendant moved for a non-, suit on the grounds of the negligence of plaintiff’s intestate; that the negligence of defendant had not been shown; and that the structure having been made for a fire escape and not being used for that purpose at the time of the accident, defendant was not liable. The motion was denied, and the defendant excepted.
    Neilsokt, Ch. J., charged the jury that they might estimate damages prospectively; that the plaintiff must prove the negligence of the defendant, and no negligence whatever, on the part of the plaintiff, or in this case on the part of the deceased; that the jury were to consider whether the fire escape was in such an unsafe condition as to make it so dangerous to life that the defendant should not have rented the premises in that condition; that the boy was bound to exercise all the care and diligence proper to one of his age; and that, as the law required the fire escape to be erected, and that the owner should keep it in repair, if injury resulted, without contributory negligence, from any neglect on her part to do so, she was liable therefor.
    To this charge the defendant excepted. The jury found for the plaintiff, and assessed the damages at $1000.
    A motion by the defendant for a new trial on the minutes was denied, and thereupon she appealed to the general term.
    
      Man & Parsons, for appellant.
    I. As to obligation of defendant to repair, cited: Doupe v. Grenin, 45 N. Y. 119 ; Witty v. Matthews, 52 Id. 512 ; Suydam v. Jackson, 54 Id. 450; Post v. Vetter, 2 E. D. Smith, 248 ; Jaffe v. Harteau, 56 N. Y. 398 ; Casey v. Mann, 5 Abb. Pr. 91; Grott n. Gandy, 2 Ellis & B. 847.
    II. As to liability of landlord for failure to comply, with the statute for the construction of fire escapes, and that the statute did not operate to vary the contract between the lessor and the lessee, so as to compel the former to repair the premises, where the lease in effect provided the contrary, cited: Mayor of N. Y. v. Corlies, 2 Sandf. 301; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127.
    III. As to inapplicability of cases which charge an owner for liability with reference to the condition of a street or of a pier where the premises were private, and that the responsibility for the premises, as between the defendant and the plaintiff, devolved upon the latter, cited: Congreve v. Smith, 18 N. Y. 79; Davenport v. Buckman, 37 Id. 568; Dygert v. Schenck, 23 Wend. 446; Anderson v. Dickie, 1 Robt. 238; Swords v. Edgar, 59 N. Y. 28 ; Cannavan v. Conklin, 1 Daly, 509; O’Brien v. Capwell, 59 Barb. 497; Kastor v. Newhouse, 4 E. D. Smith, 20; Howards. Doolittle, 3 Duer, 464.
    IV. Against the charge that the deceased was only bound to Exercise the care proper to his age, counsel cited: Davenport v. Buckman, 37 N. Y. 568; Sheridan 
      v. Brooklyn & Newtown R. R., 36 Id. 39 ; O’Mara v. Hudson R. R., 38 Id. 445 ; Mangam v. Brooklyn R. R., Id. 455; Thurber v. Harlem B. M. & F. R. R. Co., 60 Id. 326; Calligan v. N. Y. C. & H. R. R. Co., 59 Id. 651; Carroll v. Staten Island R. R. Co., 58 Id. 126.
    V. That the dangerous condition of the fire escape being obvious, no one could put himself in a position where it would be possible to fall through, without contributive negligence.
    
      Morris & Pearsall, for respondent.
    I. The tenants had a right to suppose the fire escape strong and secure in all its parts. It was the legal duty of the defendant to keep it in a safe condition (Whar. Meg. § 36 ; Tit. 13, § 36, of the Amended Charter of 1873).
    II. The non-performance of this duty by defendant is not excused by reason of her ignorance that it was out of repair.
    III. The defendant should have notified the tenant of its dangerous condition.
    IV. The question of contributory negligence having been submitted to the jury under a charge favorable to the defendant, its finding upon that question is conclusive (Ireland y. Oswego R. R. Co., 13 N. Y. 533; Bernhardt v. R. S. R. R. Co., 23 How. Pr. 168 ; Mullaney v. Spence, 15 Abb. Pr. N. S. 330).
    
      
       See on this subject, besides cases in text, Loop v. Lichfield, 43 N. Y. 351, and cases there cited ; Losee v. Buchanan, 51 Id. 476 ; Losee v. Clute, Id. 494; Baird v. Daly, 57 Id. 236, rev’g 4 Lans. 436; Coughtry v. Globe Woolen Co., 56 N. Y. 124, rev’g 1 Supm. Ct. (T. & C.) 452 ; Mullen v. St. John, 57 N. Y. 567 ; Vincett a. Cook, 4 Hun, 318 ; Scullin v. Dolan, 4 Daly, 163 ; Gardner v. Bennett, 38 Super. Ct. (J. & S.) 197 ; Clare v. Nat. City Bank, 14 Abb. Pr. N. S. 326 ; Walsh v. Mead, 8 Hun, 387 ; Ryan v. Thomson, 38 Super. Ct. (J. & S.) 133; Totten v. Phipps, 53 N. Y. 354; McGarry v. Loomis, 63 Id. 104
    
   McCue, J.

The fire escape upon which the accident happened was no part of the premises rented by the defendant to the father of the deceased. It was erected for the use of all the occupants of the building, and although.intended, doubtless, to be resorted to only in case of fire, yet access to it was had from the rear window upon each floor.

No notice was given prohibiting its use in the ordinary way in which it was intended to be used, and the inmates of the building there had the right to presume that it was in proper repair and condition.

The escape forming no part of the demised premises, we do not consider the rule of law as to repairs, as between landlord and tenant, applicable in the present case.

The structure was erected long after the building itself, and in obedience to the requirements of the statute. The statute made it a misdemeanor to neglect the erection of the escape after due notice, and imposed in addition a penalty of $500. The statute also made it the express duty of the owner to keep it in good repair and well painted.

The duty, therefore, of keeping it in repair did.not result from the relation of landlord and tenant, nor from any contract, express or implied, between the parties, but from the plain directions of the law; and we have thus presented the main question in the case, —Is this a mere police regulation creating an obligation on the part of the landlord to the public authorities, and to them alone ? This is the defendant’s position.

We think the deceased had the right to presume that the defendant had discharged the duty imposed upon her, and that the escape was at all times in such condition and repair that it was safe fco use in case of fire. If sufficiently strong for that purpose, it was equally so for the purpose and to the extent for which it was employed at the time of the accident.

There was a doorway in the floor of the escape, which was intended to cover and guard a passage-way to stairs leading to the sfcory below, and by successive stairs leading finally to the ground. The hinges which had originally held the door had long been broken, and at the time of the accident, the door was held in place by a wire and string, so that, while the door appeared to be secure in its place, its condition was really dangerous. When last seen, the deceased, a boy ten years of age, was sitting upon the sill of the window in the rear of the house, opening immediately upon the escape, the floor of which was about eighteen inches only, below the level of the window.

The boy must have stepped from the window to the floor of the escape, and the door, which formed a part of the flooring, gave way with his weight, and he was precipitated to the story below, and died in a few hours from the injuries received by him in the fall.

The deceased made use of the escape, it is true, at an unusual time, to wit, when there was no fire; but it did not appear that the use of it was made in any unusual manner.

Upon these facts we are of opinion that the defendant was liable as having failed to discharge a legal duty, and in the proper discharge of which all the inmates of the building had an interest.

It is very clear that if the accident had occurred while the deceased was endeavoring to escape from the building in case of a fire, the defendant would have been liable; and this liability, we do not think, is at all affected by the fact that the accident occurred under the circumstances above detailed.

We regard this case as coming within the rule which holds a party responsible who maintains, upon his own premises, a structure dangerous to the public, without so guarding access and approach to it, as to prevent the occurrence of an accident without inexcusable carelessness on the part of the person injured. The authorities bearing upon this point are very fully discussed in the opinion of Judge Reynolds, in the case of Mullaney v. Spence, decided by the general term of this court in February, 1874 (15 Abb. Pr. N. S. 330).

The defendant, having failed to keep the escape in proper repair, is liable for injuries resulting therefrom.

We see no error in the instructions under which the cause was submitted to the jury, both on the question, of defendant’s negligence, and contributory negligence on the part of the deceased, and we are of opinion that the verdict is fully warranted by the evidence.

The judgment should, therefore, be affirmed, with costs.

Reynolds, J., concurred.  