
    JOHNSON v. STEAM-GAUGE & LANTERN CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    1. Master and Servant—Negligence—Fire Escapes—Unsafe Landing.
    A safe landing place is an essential part of the fire escapes with which factory operators are required by statute to supply their factories; and an employe who is injured in escaping from a burning factory, by dropping from the lower rung of the fire escape into a chute leading into an area way 20 feet below, is entitled to recover damages from his employer.
    2. Same—Factory Inspector’s Certificate.
    A certificate of the factory inspector, approving the escape, does not relieve the employer from liability for his negligence in not providing a safe landing place.
    8. Same—Contributory Negligence.
    The employe was not 'guilty of contributory negligence in attempting to use the fire escape to escape from his perilous position in the burning building, though he may have known, in a general way, that the landing place was unsafe.
    4. Same—Expert Evidence—Surgeon.
    In an action for the injuries, consisting of a broken leg, a surgeon who examined plaintiff soon after the accident is competent to testify, as an expert, that, judging from the relative position and the condition of the broken bones, plaintiff’s foot struck upon a sloping object; that the heel struck the object before the ball of the foot; and that plaintiff's body was in an upright position when he fell.
    Action by Alfred Johnson against the Steam-Gauge & Lantern Company for personal injuries. There was a verdict in plaintiff’s favor, and defendant moved for a new trial on exceptions ordered to be heard at the general term in the first instance.
    Motion denied.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    Walter S. Hubbell, for plaintiff.
    Louis Marshall, for defendant.
   LEWIS, J.

This action was brought to recover damages sustained by the .plaintiff for injuries sustained while attempting to escape from the factory of the defendant, in which he was employed at the time. The building was destroyed by fire on the evening of the 9th of November, 1888. His. injuries, he claims, were caused by the defendant’s failure to provide suitable and proper fire escapes on the building. The defendant was the lessee and occupant of a building which was located in the city of Rochester, adjoining the Genesee river, and was engaged in manufacturing therein lanterns and steam gouges. The building was seven stories high, and consisted of a main part, which extended north and south; a wing about 100 feet long, running east and west, and connected with the main part, on each floor, by means of arches, thus constituting a single building. The Genesee river flowed along and against the north and east foundation walls of the main building. On the south side of the wing, and on the west .side of the main part, was a court which ran south to Center street, and was, at its eastern end, about 40 feet in width. This court was surrounded on three sides by buildings,—on the west, by one extending from Center street to the wing of the defendant’s factory; on the east side, by a building extending from Center street to the defendant’s main building; on the north, by the wing of defendant’s building. The natural surface of the ground of this court descended from Center street towards the north so that at the wing building the surface of the ground was about on a level with the top of its foundation wall. Within this court, and near its north end, a building had been constructed to contain an engine and boiler. It had independent stone walls. Its north wall was located 6 feet 2 inches south from the south wall of the wing building. Its east and west walls were three or four feet distant from the main building and from the west building, leaving an open area between the engine building and the wing building extending to the bottom of the lower story of the wing building. The engine building was about 14 feet in height. The top of it was paved, and formed the - floor of the court, which was used for the purpose of reaching the steps leading from the court into the building.

When the factory building was constructed there was a pair of stairs leading from the upper floor of the building to an opening in the roof, for the purpose of escape in case of Are. These stairs had been removed by the defendant previous to the fire, and at the time of the fire the only means of reaching the roof was by one of the fire escapes hereafter mentioned. There were two fire escapes upon the building,—both upon the court sides. One was upon the west side of the main part, which it is not necessary to particularly describe, for the reason that, in consequence of the presence of window blinds opening against the escape, it was exceedingly difficult, if not impossible, to reach the escape from the windows of the building. The other fire' escape was upon the east wall of an elevator shaft, which extended out into the court some six feet from the southerly side of the wing part of the building. This escape was made of iron pipes, the bent ends of which were inserted into the wall of the elevator shaft. It extended from the roof of the building down the wall to a point about 14 feet above the roof of the boiler room. This escape was directly over the area described, between the boiler room and the wing building. ■ This area extended from the elevator shaft easterly to the main building, some IS or 20 feet, and was, as stated, 6 feet 2 inches wide, and some 20 to 25 feet in depth. A person dropping from the lower rung of the escape, but for reasons hereafter stated, would naturally fall into this area or open space. There was a door in the south wall of the wing building, just east of the elevator shaft When the building was constructed, a platform or landing was placed in front of this door, partially covering the area. There were three or four steps leading from the roof of the engine and boiler building up to this platform. The treads and platform rested upon two iron rods extending from the boiler building to the wing, and which were so constructed as to support the steps and platform. The use of this door was abandoned a year or two before the accident in question, and the treads and the outer board of the platform were removed, leaving only the two iron rods and the remnant of the platform, which was some 20 inches to 2 feet in width, in position. This change was made to make room for a chute from the court into the lower story of the wing building, and one was placed in between the iron rods mentioned, near the east wall of the elevator shaft. The chute was about 3 feet wide, and was made of boards, with risers on each side about 6 inches high. Its upper end extended up about 2 or 3 feet higher than the roof of the engine house. The chute ran down into the wing of the building, into a door directly under the door above described, and at an angle of about 45 degrees. It was used for sliding boxes and supplies from the court into a lower story of the wing building. The upper end or mouth of the chute extended out into the court beyond the line of the rungs of the fire escape, but just how far does not appear. It was sufficiently near to the escape so that some of the persons who attempted to descend the fire escape on the night of the fire, in dropping from the escape, landed in the chute. A witness testified that, when dropping from the fire escape, he swung his body out into the court, so as to avoid falling into the area, and fell into the chute. The plaintiff, in describing his descent, says he dropped straight down from the last rung, and found himself, when he became conscious, in the chute. There were a large number of employes in the building at the time of the fire. The fire spread with great rapidity, filling the building with dense smoke. The plaintiff was at work, at the time the alarm of fire was given, upon the fifth floor. He passed down the stairs leading from the fifth to the fourth floor, and attempted to descend the stairs from the fourth to the third floor, but was prevented from so doing by smoke and fire. He then went to the fire escape upon the elevator shaft, and proceeded to descend into the court, and when he reached the lower rung of the escape he dropped from the escape, and became unconscious. When he regained his consciousness, he found himself seated in the mouth of the chute, with his legs hanging over its sides. His left leg was broken in several places below the knee, making amputation of the leg necessary.

The statute made it the defendant’s duty to provide the plaintiff with, suitable and proper fire escapes, connected with each floor of the factory above the first, well fastened and secured, and of sufficient strength. The statute also required that there should be stairs or a ladder leading from the inside of the upper story of the building to the roof. The stairs, as we have seen, had been removed,9 and one of the fire escapes was practically useless, because of the obstacles in the way of reaching it. The evidence, we think, tended to show, and justified the jury in finding, that the defendant failed to provide a proper fire escape. A safe landing place is an essential part of a fire escape. Had the fire escape in question been upon the north side of the factory, over the waters of the Genesee river, it would not be claimed to have been a fire escape, within the meaning of the statute. The defendant had caused the covering to the area to be so removed that persons using the fire escape were liable to receive serious injuries. The evidence tended to show that plaintiff’s injuries were caused by the negligence of the defendant.

The plaintiff was not guilty of contributory negligence, in attempting to use the fire escape. While he had a general knowledge of the location, had seen the chute, and knew, perhaps, that the steps had been removed, he did not know the precise situation and relative position of the fire escape, the steps, chute, and area; and, if he did, it is not surprising that, in the excitement of the occasion, he did not think and reason quite correctly.

Surgeons testified that they found both bones of the plaintiff’s left leg broken below the kn'ee, and that one of the broken bones was driven up into the knee joint. One of the surgeons was permitted to testify that judging from the relative position and the condition of the broken bones; in his opinion, the plaintiff’s foot of the broken leg struck-upon a sloping object, and that the heel of the foot struck the object first, before the ball of the foot struck, and that his body was in an upright position when he fell. This testimony was given by one of the surgeons who saw the plaintiff immediately after his injuries, and examined his condition. We think the evidence was competent. The witness, being a surgeon, presumably had a knowledge of the anatomy of the human body, the strength and position of the bones of the leg, not common to laymen, and, having had the advantage of a personal examination of the plaintiff’s leg after the injury, he was properly allowed to give his opinion as an expert.

The defendant’s counsel contends that the approval of the fire escape by the factory inspector operated asi a compliance by the defendant with the requirements of the statute, and as an answer to any charge of negligence. The inspector probably never saw, or had his attention called to, the condition of things under the escape where plaintiff was injured. It cannot be successfully maintained that his certificate could operate to convert an obviously unsafe landing into a safe one. The inspector testified that he did observe that the window blinds obstructed access to the fire escape upon the main 0building, and advised their removal, but that his advice was not heeded by the defendant.

We have examined the defendant’s exceptions, and find no reason for disturbing the verdict. The motion for a new trial should be denied, with costs, and judgment directed for the plaintiff' upon the verdict. All concur.  