
    (67 Hun, 484.)
    GORMAN v. McARDLE.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    4. Master and Servant—Fire Escapes for Employes.
    Though defendant, engaged in carrying on a manufacturing establishment, failed to provide a lire escape on the outside of the building, as required by Laws 1887, c. 463, yet he was not guilty of negligence if he provided an equally safe and convenient escape in case of fire through a door from the working room to the roof of an adjoining building, for this would be a substantial compliance with the statute, which is sufficient. Pauley v. Lantern Co., 39 N. E. Rep. 999, 131 N. Y. 90, followed.
    5. Same—Contributory Negligence.
    Whether plaintiff, who was injured by jumping from the building during a fire, was told Of the way of escape over the adjoining building in case of fire, -as to which there was a conflict of testimony, was a question of fact for the jury, as was also the question whether that way, if plaintiff was told of it, was as safe and convenient a mode of exit as the statutory fire escape.
    :3. Same—Instructions—Harmless Error.
    There was a conflict of evidence as to whether at the time of the fire the ■only door leading from the roof to the fourth floor, where plaintiff was employed, was locked, and in submitting the question to the jury the court remarked that it was the “ statutory ” duty of defendant to keep the door unlocked at all times during business hours. Held that, though the use of the word “statutory” might not have been correct, it could not have injured defendant, since it was his duty to keep the door unlocked, and also because the court afterwards fully explained to the jury that to make defendant liable in consequence of the door being locked, if they should determine it was, they must find that, if unlocked, plaintiff could have escaped that way.
    4. Same—Sudden Danger.
    If the jury found that plaintiff knew of the way of escape, and that it was open, it was for them to say whether, in view of the great confusion and rapid filling of the room with dense smoke, it was contributory negligence for him not to find and use the way of escape provided.
    -6. Same—Risks Assumed.
    In the absence of evidence showing certainly that plaintiff knew that there was no fire escape, or that his attention was ever called to the subject, and it appearing that his work was wholly on the inside of the building, and he had no connection with the fire escape, or particular reasons' for examining the part of the building where it should be. it cannot be said that plaintiff voluntarily assumed the risk of accident by fire as an incident of his employment, for such risks are those which he knows of or are apparent, and plaintiff could properly rely on defendant doing his statutory duty.
    6. Same—Repeal op Statute.
    The repeal, after the accident, of the statute requiring fire escapes, did not prevent plaintiff from maintaining his action; for. though that might be the result of the repeal of a statute providing a penalty, it would not apply to a statute like the one in question, which made it a duty of proprietors of manufacturing establishments to furnish the fire escapes, a failure to perform which duty has been held in the courts to be negligence, for which an employe injured thereby may-maintain an action for damages.
    Appeal from circuit court, Albany county.
    Action by Daniel J. Gorman against Patrick J. McArdle to recover damages, alleged to have been sustained through failure of defendant to furnish a fire escape as required by statute. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J,, and PUTNAM, J.
    Walsh & Kelly, (Edward Countryman, of counsel,) for appellant.
    Eugene Burlingame, for respondent.
   PUTNAM, J.

This action was brought on account of injuries received by plaintiff on September 8,1889, in jumping from a fourth-story window of defendant’s .manufacturing establishment, where he wras 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 onto 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 employes, 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 1889, (amending chapter 409, Laws 1886, .as amended by chapter 462, Laws 1887,) or that the provisions of that statute applied to him, although a lessee, and not the owner, of the building in question. Appellant having neglected to provide a fire escape as prescribed by the aforesaid act, if plaintiff received the injury complained of in consequence of such neglect, he was entitled to recover, unless defendant provided some safe way of escape for his operatives in case of fire, in place of the statutory fire escape. The case of Pauley v. Lantern Co., 131 N. Y. 90, 29 N. E. Rep. 999, holds that the act above referred to imposed a duty on the owners or occupants of the prescribed class of factories, and, 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, were 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; hence, 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 caseto 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 judge fairly submitted these questions to the jury. He said:

“ If the defendant did, through that window in the south end of the building, provide a suitable and safe tire escape, if he rendered a reasonably safe exit to the people engaged in that room, in his employment, to escape through that window, to the scuttle in the roof, to the floor below, then he was performing his full measure of his statutory duty. ”

And then, again, he was requested to charge by counsel for defendant, and did charge—

“ That if the jury believe the escape through the window onto the adjoining roof of the Parson’s building, and thus through the scuttle holes, was easily accessible, unobstructed, and safe for that purpose to the employes of the fourth floor, then that is a sufficient compliance with the statute. ”

It will thus be seen that the court submitted 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 “statutory ” 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 employes 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 contributory negligence in omitting to use that way of escape, and hence cannot recover. I do not regard this as one of those exceptional cases where the question as to the plaintiff’s contributory negligence could be taken from the jury, and passed upon by the court as a question of law. Plaintiff and others testified' that they did not know of the way of escape over, the" roof of the adjoining building. It was shown that, after the first alarm of fire, the room rapidly filled with dense smoke. There was much confusion. It was for the jury to say whether or not the plaintiff knew of the,mode of escape through the window and roof of the adjoining building; also, if he did know, and failed to find and use the window in the dense smoke and confusion, and, under all the circumstances, whether or not this was contributory negligence on his part. The plaintiff, being called on to act suddenly, should not be held to a most rigid accountability in passing on the question as to his contributory negligence. Bucher v. Railroad Co., 98 N. Y. 132, 133.

It is claimed that plaintiff, knowing that no fire escapes were provided, voluntarily, and with knowledge of that fact, continued at work, and hence 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. Railroad Co., 63 Iowa, 566, 14 N. W. Rep. 340, and 19 N. W. Rep. 680. 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 employe 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 ¿scopes were provided outside, it is not certain that he did so. He was not bound to so examine, and could properly rely upon the defendant’s performing his statutory'duty. Willy v. Mulledy, 78 N. Y. 315. 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. Railway Co., 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 defendant’s 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 the many authorities that might be considered on the subject of the risk assumed by an employe 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 failing to furnish him a safe place to work in. I think the principle stated in McGovern v. Railroad Co., 123 N. Y. 280, 25 N. E. Rep. 373, applies to this case. It is there held that—

“Those dangers, however, which are known, and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master, are not incident to the business; and it is the duty of the master to protect his servants therefrom in all cases in which it maybe done by reasonable care. When, therefore, the master directs the performance of work by his servant at a place which may become dangerous, and such danger may be foreseen, and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care, and adopt such precautions as will protect the servant.

And see Pantzar v. Mining Co., 99 N. Y. 376, 2 N. E. Rep. 24; Buckley v. Iron Ore Co., (Sup.) 2 N. Y. Supp. 133; Benzing v. Steinway, 101 N. Y. 551, 552, 5 N. E. Rep. 449; Freeman v. Paper Mill Co., 61 Hun, 132, 15 N. Y. Supp. 657; Cullen v. Norton, 52 Hun, 12, 4 N. Y. Supp. 774.

I think the position of appellant that the repeal by chapter 398, Laws 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 penalty to be recovered in an action. It made it the duty of the proprietor of a manufacturing establishment to maintain fire escapes, and the failure to perform this statutory duty has been held by the courts to be a negligent act, and that an employe 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 the negligent act of the defendant, under the law as it- stood when he was injured; and the repeal of that law does not affect his vested right of action. Vanderkar v. Railroad Co., 13 Barb. 393; Steamship Co. v. Joliffe, 2 Wall. 450; Butler v. Palmer, 1 Hill, 325. The judgment should be affirmed, with costs.  