
    Frank L. Woods, Appellant, v. Charles Miller and Frederick B. Losee, Respondents.
    
      Negligence—a fireman on the roof of a building stepping, over apa/i'iy wall and falling into the bach y.wrd of an adjoining house—the owner of the adjoining premises is not liable.
    
    An action was brought, to recover damages for personal Injuries, by' a fireman, who, while groping his way in dense smoke upon the roof of a building' between which and the adjoining premises, which were owned by the defendant, there existed a party wall, stepped over a low parapet or coping of the party wall and fell into an opening, constituting the back yard or air shaft of the defendant’s premises. No part of the building on the defendant’s lot adjoined the place where the plaintiff fell, that place being several feet distant from the rear wall of the defendant’s building.
    
      Held, that the complaint was properly dismissed; that the defendant was" not hound to cover his entire property with buildings or to fence out all persons against the danger of falling into the hack yard of his premises.
    Appeal by the plaintiff, Frank L. Woods, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 20th day of December, 1897, upon the. dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s offi.ce on the 10th day of December, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William P. Pickett, for the appellant.
    . J. Stewart Poss, for the respondent Miller.
    
      Thomas H. Williams, for the respondent Losee.
   Goodrich, P. J. :

In 1895 the plaintiff was a fireman in the Brooklyn fire department, with which lie had been connected for ten years. During the night of the twenty-second of September of that year there was a fire in a four-story building known as No. 1434 Broadway, and in the discharge of his duty the plaintiff went up on the roof of the building. While groping his way in the dense smoke he stepped over a low parapet or coping and fell into an opening and to the ground, receiving serious in juries. He brought this action to recover the damages sustained by him, and at the close of his evidencé the court dismissed the complaint. From the judgment entered thereon this appeal is taken.

It will be observed that the foregoing' brief statement contains no reference to the connection of the defendants with the premises Ho. 1434 Broadway. This can.be shown more clearly by reference to the following diagram of the roof, the scale of which is only approximate:

The defendant Miller was the owner of the premises Ho. 1432, which had been built upon several years before the accident, and he had leased them to Losee. The building was occupied by several families, and for their convenience and protection there was' a picket fence around a part of the roof space, about ten feet back of the place marked “ Opening.” The defendants had no connection with the building Ho. 1434, except that the wall between the two buildings was a party wall. The place where the plaintiff fell was over a part of the party wall between lots 1432 and 1434, where there was a parapet about ten inches in height, covered by a bluestone coping about a foot iii width, but no other guard of protection. The party walls on each- side of Miller’s house and the -rear wall of his building form an irregular quadrilateral opening,' as shown on the diagram, which is the part of ' Miller’s lot not built upon or covered by his building, and forms a- back yard, or, as the plaintiff calls it,, an air shaft. It will be observed that no' part of Miller’s building adjoined the place where the plaintiff fell over.' That place was several feet distant frqm the rear wall of his building.

At the time in question a fire had occurred on .the premises Mo.' 1434. The plaintiff, with other firemen, was ordered by his superior officer to go upon the roof of that house to 'extinguish the fire, which was' breaking -through the roof, jiust forward of the dumbr waiter house. There was' á considerable volume' of smoke which obscured the scene. The plaintiff, in trying to get to the windward of the smoke, went to the back part of the roof in order to' use the hose, and while doing so he stepped over the parapet and fell into the opening. He thought there was a continuation of the roof, instead of a' vacant space. ' '

It is at first blush somewhat difficult to understand the reason which induced the- plaintiff to select the defendants as. the persons against whom he should bring this action. ; It may be found . in the following allegation of the complaint: “Second. -On the said 22d day of September, 1895, there was in said building, an air and light shaft, extending from the first, story lip wards about forty feet- to the. roof of said building, which .was a flat roof, and on- a level with the roofs of. the adjoining buildings. Said air ¿nd light shaft ended in an opening in said, roof, in the form' of an irregular quadrilateral about ten feet in length, and about six feet in width. Said opening in said roof had no cover thereon, and _ the same. was. not inclosed by a. railing or guarded .in any manner t whatsoever. Said- uninclosed and unguarded opening in the roof of • said building was dangerous to life and limb; and constituted a nuisance. - This-condition of affairs had existed for more than a year prior to said 22dof September, 1895, and was known to-the defendants, who carelessly and negligently allowed the same to remain in this dangerous condition, but was not known to-the'plaintiff!”

■ The theory of the plaintiff seems to be that -the owner of premises is bound, either to cover his entire lot with buildings, or to fence ont all persons against the danger’of falling into the. back yard of such premises, and that such duty is commensurate with but in inverse proportion to the size of the yard. If the yard is small, the duty is great; if the yard is large the duty is small. Eollowing out the logic of his contention, one of two duties lies upon the owner. Either lie must have no back yard, or, if he has a back yard, he must fence the surrounding party walls, if there be any, in such a manner that a party entering upon the roofs of the adjacent houses cannot fall into his back yard. This is recbuctio ad absurdum, but to-reverse the decision of the Trial Term we must hold it to be the law.

Originally, there was no structure on the ground at the bottom of the opening, but sometime prior to the accident the tenant Losee, who kept a drug store on the ground floor, had extended it by building a glass roof over the yard or opening, at the height of the store ceiling, thus forming a rear room to his store. Otherwise, the opening was unobstructed to the top .of the roof.

It is not singular that the learned counsel for the plaintiff says : “ The case is believed to be a novel one in this State.” He cites in support of the plaintiff’s right Swords v. Edgar (59 N. Y. 28) and Ahern v. Steele (115 id. 203). These were actions against the owners or occupants of piers in the city of Hew York, which broke down and injured persons rightfully on them. The point decided in these cases was that the occupant of such a pier is bound to keep it in repair and safe condition, and for failure to do so, te such an extent that a nuisance is created, he is liable for damages ' occasioned by the defective condition. Timlin v. Standard Oil Co. (126 N. Y. 514) was asimilar action against an occupant of premises which were allowed to fall into such bad condition that a wall fell and injured a person; the court held the occupant liable. It was hardly necessary to cite authority upon this elementary legal proposition, but we cannot see the application of the principle to the case at bar.

The case of Low v. Grand Trunk Ry. Co. (72 Maine, 313) is easily distinguishable. It holds that a customs officer, whose duty required his presence on a wharf, was not a mere licensee, as his presence there was made necessary by the business to which the defendant had dedicated its wharf", that is, to the public use thereof by vessels discharging cargoes Coming from foreign countries, over which the officer- had control under the laws of the United States: In, this case the defendant was held liable for failure to provide either alight upon,- or a railing around, a-gangway over.which the.plaintiff was passing, . in consequence of which he fell into-the slip;

The case of Learoyd v. Godfrey (138 Mass. 315) was a case where án injury happened to a. police officer who went on the defendant’s premises to .arrest an offender and fell into an unprotected well or. opening, on such premises. Here the well was on the premises where the policeman went in the discharge of his duty. . The case differs materially from the one at bar. If it decides anything of use to the plaintiff here,- it 'may be that it declares some liability to exist on the part of the occupant of Ho. 1434, but it cannot be applied by us to any duty owing by the owner of Ho. 1432, unless we are prepared'to hold that a part owner of a party wall,.a part of which is notin. use by him, but is in use by the other part owner, is bound to build a fence at the top. of an unused part, to prevent the fall of any one. from the . roof' of the premises owned by the .party who is using that part of ' the wall.

■ Another, principle invoked by the-plaintiff’s counsel is cited from Shearman and Redfield on Negligence (§' 704) where the doctrine is stated: “ The occupant of land is bound to use ordinary care and diligence to keep the .prejnises in a safe: condition for the -access of • persons who come thereon by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him.” It may be observed in passing, that the only time-when the plaintiff came on -the’ defendant’s premises was when- he fell- into them, but it can hardly be said that this is! such an entry as was -contemplated in the citation. This doctrine might have been- cited with more effect in an action against the owner, of Hó; 1434, from the roof of which the plaintiff-fell, but 1 cannot see in it any apposition as to the defendarit’-s liability.'

The duty which a fireman undertakes to perform is an important . one for the -public and it is bravely fulfilled, often at risk of life ■ and. health, but this duty is one which arises from the nature' of the service. This duty, however, very seldom requires the presence of .firemen upon any particular roof, though in the aggregate: they, go upon many roofs. It cannot be held that the occupant of - premises is required to provide for their occasional and unusual presence on a roof, so as to impose upon such occupant the duty of fencing every part of the roof, back, front and sides, wherever the roof ends, in order to prevent the firemen from the danger of falling over the unguarded edge. The fact that roofs are not ordinarily fenced around in this manner gives ample notice to the fireman that he 'may not approach the edge without ascertaining whether danger lies beyond it. Moreover, in the present instance, there was a coping ten inches in height, and this afforded notice to- the plaintiff that he had come to the" edge of the roof upon which he was performing his duty. He had no right blindly to assume that there was a continuation of the roof, or another roof beyond the wall. Before he stepped over he should have ascertained the condition of things, and his failure to do this was a distinct act of negligence which was the immediate cause of the accident. The open space was not the proximate cause of the injury. The. proximate cause was the plaintiff’s failure to discover the opening beyond the coping.

It follows that the plaintiff was guilty of contributory negligence, and the complaint was -properly dismissed.

Bartlett, J., concurred, except as to the contributory negligence of the plaintiff; Hatch, J., absent.

Cullen, J. (concurring in the result):

I dissent from the view that the plaintiff was guilty of contributory negligence 'in -failing to observe the condition of the premises of the defendant, or in stepping over the coping. The question was one of fact for the jury. But I am clear that no negligence can be imputed to the defendants. Certainly an owner of real property is not bound either to so improve his own property or guard it that a person may not fall thereon from his neighbor’s premises. ' If there is any duty as to the subject-matter, it rests on the neighbor.

Secondly. Even had the plaintiff fallen from the defendants’ roof, the latter would not have been liable. Where one does not, either expressly or by implication, invite persons to use the roof of his building, he is under no obligation to make it- safe and secure for those that may enter upon it. The defendants might have constructed the roof of glass in iron frames, if, for an.y purpose, great ■light in the building was desired; and. the presence.of skylights in' city dwellings is very common. In the absence of statutory direction the defendants were not bound to provide for the use of the roof by firemen. In the exercise of the police power the Legislature may doubtless regulate the character of buildings with .-reference' to the danger from fire. In many portions of : every city the erection of wooden buildings is now prohibited.. But until such prohibition is enacted, one may build his house of wood without . incurring liability,, though, doubtless, it is more readily burned ..than brick structures. ■ Even where the erection of wooden buildings is prohibited, I know of no case where the demolition of .those already erected has been compelled.

Wood ward, 1., concurred.

Judgment and order unanimously affirmed with costs.  