
    Jacob Pauley, Adm’r, Resp’t, v. The Steam Guage & Lantern, Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 2, 1892.)
    
    1. Master and servant- -Negligence—Fire escape.
    The Law of 1887, chap. 403, as to fire escapes, imposed a duty upon the owners or occupants of the prescribed class of iactories, for an omission to perform which the operatives injured by the omission might recover damages. But the duty so imposed is both created and measured by the statute.
    2. Same.
    Defendant placed two fire escapes upon its building which were examined and approved by the inspector. The building was five stories high on the court side and seven on the river side, and no scuttle leading to the roof with a stationary ladder giving access to it, but the iron ladder fire escape was carried to the roof instead of stopping at the upper story. Held, that defendant had not omitted any duty imposed upon it by the statute and was not negligent or careless in the due performance of its duty towards its employees.
    3. Same.
    There was a shute in the court, at the bottom of the ladder, which led into the building, and the complaint alleged that plaintiffs intestate fell from the bottom of the ladder back into the building through the shute. His body was found eight or ten feet from the opening of the shute into the basement in the centre of the depth of the debris made by the fallen floors, upon the wreck of the floors beneath the fifth, and covert d by the debris of the two floors and the roof above. Held, that the evidence disproved the theory of the complaint and no judgment founded on it could be sustained.
    
      4. Same.
    There was some proof that some of the operatives fled to one of the escapes but did not use it on account of the blinds swinging against it. Held, that the presence of blinds did not turn into actionable negligence the situation of the escape which a disinterested inspector had examined and approved.
    Appeal from judgment of the supreme court, general term, fifth department, setting aside a nonsuit and granting a new trial.
    
      Louis Marshall, for app’lt; Eugene Van Yoorhis, for resp’t.
    
      
       Reversing 40 St. Rep., 855.
    
   Finch, J.

The plaintiff’s intestate lost his life in a fire which, consumed the factory of the defendant, and did its work so swiftly and swept through all parts of the structure with such rapidity that more than thirty of the men employed in the building were unable to escape. The origin of the fire is unknown. No claim is made that it was occasioned by any act or omission of the defendant company, or was in any manner a product or result of its fault or negligence. The ground upon which the action brought to recover damages for the death of the intestate actually rests is that the defendant was negligent in not providing sufficient and adequate means of escape from the building in the emergency of its taking fire, and that such negligence operated to cause the death of the intestate. The plaintiff was non-suited at the circuit, but on exceptions heard at the general term obtained a reversal of the ruling and an order for a new trial. The defendant has appealed from that judgment to this court, giving the usual stipulation, and we are now to determine whether, upon any view of the facts, the plaintiff was entitled to recover.

We are satisfied that if any duty devolved upon the defendant to anticipate the possible burning of its building and provide modes of escape adequate to that emergency, such duty did not exist at common law, and had its origin and measure in the statute which for the first time required in particular cases the construction of fire escapes. Laws of 1887, -chap. 462, § 10. Prior thereto, the owner of a building not peculiarly exposed to the danger of fire from the character of the work to be carried on within it, was not bound to anticipate what was merely a remote or possible danger, or that its occurrence would put in jeopardy the lives of his workmen.

The ordinary means of escape by stairs and halls and doorways and windows might reasonably be deemed sufficient, and ■the common law did not require, where the building was properly constructed for its intended use and purpose, that extra and unusual precautions should be adopted to protect the occupants against a danger for which the owner should be in no manner re-1 snonsible and which he was not reasonably bound to anticipate. That was held in Jones v. Granite Mills, 126 Mass., 84, a case which we cited as authority in Bajus v. S.,B. & N. Y. R. R. Co., 103 N. Y., 319; 3 St. Rep., 96, and the doctrine was repeated in Keith v. Granite Mills, 126 Mass., 90. But with the growth of invention and the spread of the mechanic arts, came an increase in the number of factories employed in production, of the workmen gathered in their rooms, and especially in the size and height of the buildings. The attention of the legislature was first drawn to the evils attending the employment of women and children in such factories, Laws of 1886, chap. 409, and the next year to the possible danger to the operatives when employed in buildings three stories or more in height. Laws of 1887, supray § 10. The very terms of this statute show that in ordinary buildings the usual modes of egress were deemed sufficient, and thattherewas.no negligence in the common and usual reliance upon them; but that factories of greater height, in which were gathered operatives in considerable numbers upon upper floors, were not so easy to safely leave in case of fire, and required additional protection. The act, therefore, as amended in 1887, contained a section which reads thus: “ Fire escapes shall be provided on the outside of all factories three or more stories in height connecting with each floor above the first, well fastened and secure and of sufficient strength. Stationary stairs or ladders-shall be provided on the inside from the upper story to the roof as a means of escape in case of fire.” The act imposed penalties-for any disobedience of its provisions, and provided for the appointment of factory inspectors wffiose duty it should be to examine such buildings and enforce the requirements of the law.

' I am unable to agree with the contention of the appellant that-the sole remedy under the statute was the public remedy which consisted of an enforcement of the penalties provided. The requirement of fire escapes was for the direct and special benefit of the operatives in such factories, and intended for their protection, and the rule applies that when a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage, or for a wrong done to him contrary to its terms. We so held in Willy v. Mulledy, 78 N. Y., 310, and sustained an action in behalf of the persons injured for the omission to provide fire escapes in accordance with the statute applicable to that case. We musthold, therefore, that the law of 1887 imposed a duty upon the owners-' or occupants of the prescribed class of factories, for an omission to perform which the operatives injured by the omission might, recover damages.

But the duty so imposed is both created and measured by thestatuta It is a new duty, having no other origin and no other-measure, and cannot' be made to outrun or exceed the terms of the act. The defendants performed that duty. They placed two-fire escapes upon their factory which connected with each floor above the first, and were well fastened, perfectly secure, and of sufficient strength. Their number, character and location were examined and approved by the public officer appointed und.er the-law, with whom the subject was fully discussed, and who, after the work was done, and he bad carefully inspected it, expressed his approval and reported to his superiors that this factory bad, in all respects, obeyed the law. It is true that this building, which was five stories high on the side towards the court, and seven stories high on the side towards the river, had no scuttle-leading to the roof at the top of its upper story, -with a stationary ladder provided for access to it. But it was shown that one of the fire escapes, which was itself a ladder of iron rungs, instead of stopping at the upper floor, was carried on up to the roof and was a permanent ladder giving access to it.

While it was on the outside of the building instead of the inside, it was an iron ladder instead of a wooden one, giving permanent and fixed access to the roof, and 'neither the defendant nor the inspector were guilty of negligence in constructing and accepting it as a fit and suitable substitute for the inside ladder ■and scuttle. Indeed, in the fire which occurred the latter was shown to be an utterly unavailable means of escape however it might have been constructed and maintained. Balconies leading to the fire escapes were not required by the law, but were recommended by the inspector, and were placed near one of the fire -escapes, but omitted from the other, and when the work was done it met the full approval of the officer required to examine it.

Upon this state of facts it is impossible to say, as we look at the situation before the fire, that the defendant omitted any duty imposed upon it by the statute, or was negligent or careless in the •due performance; and the plaintiff’s counsel found it necessary to break the force of the proof by showing facts connected with the •construction of the fire escapes which, as he claimed, made the latter an obedience to the law in form only while disobeying it in .substance and effect.

One of these facts, and that mainly relied on by the plaintiff, was the existence of a sliute leading from the court into the basement, and placed beneath the fire escape so that a person dropping from its lower rung would be likely to fall into the opening and be returned again into the burning structure. This was the specific negligence charged in the complaint, and its theory of the manner in which the intestate met his death. If anything can be said to be clearly evolved from the horrible confusion of the tragedy described by the proof, it is that the deceased did not meet his death in that manner and from that cause; that he never descended the fire escape or fell into the shute, but was suffocated in the smoke which filled the building, and went down, dead, into the basement with the falling floors. Ho one saw him at a window or on a fire escape. There is no trace of him in any such direction. What we do know is the frightful description of the panic on the fifth floor where the deceased was employed, after escape downward by the stairs was barred by the smoke and flames, in which strong men lost their senses in a frenzy of despair, threw their arms about each others’ necks, held back some who tried to escape, and waited in helpless terror for the death which '.they deemed inevitable. The flames pervaded the whole building above the basement almost instantaneously. They poured out of the windows and flowed over the fire escapes. Those who had the courage and coolness to descend them were burned and blistered on their way, and tell us how some of their companions were turned back from the iron rungs by the puffs of fire which enveloped them. When the bodies of the dead were found their location and situation disclosed the only truth we are ever likely to .know. One group of eleven, interlocked and intertwisted so that it became necessary to take them out of the wreck in a mass, were found in the basement not far from the stairway, lying upon the fallen debris at about the centre of its depth, and so buried both upon and beneath the wreck of the fallen floors. Another group of five was found near by at about the same level. Whether Pauley was one of the two groups, or lay somewhat separated from them, is not in all respects certain ; but two things are certain ; first, that his body was found at least eight or ten feet from the opening of the shute into the basement; and, second, in about, the centre of the depth of the debris made by the fallen floors. The slightest reflection makes impossible any other inference than that he went down with the floors, which fell in one crash about, one hour after the beginning of the fire, and when all those who* had not escaped from the building were lying within it, dead. That accounts for his body being found upon the wreck:of the-floors beneath the fifth, and covered by the debris of the two-floors and the roof above. It is absurdly impossible to imagine-him crawling into that position from the shute. That, therefore,, whatever its form or situation, had nothing to do with the death of the intestate as an operative cause,

The evidence, thus, so far from tending to sustain the theory of the complaint, tends only to disprove it, and no judgment founded upon it can be sustained.

But the respondent and the general term insist that some other-theory may be adopted, and in order to do so, enter upon the realm of conjecture, and ask that a jury, in the utter absence of proof, may be allowed to guess that there was some negligence on the part of the defendant which might have tended to cause the-death of the intestate. In this connection the open blinds making an approach to one of the fire escapes difficult was referred to. The inspector testifies, in substance, that- they formed no serious-obstruction. He says: “ I observed what the effect was upon the-fire escape when those blinds were open; there was a little space left in the centre that a man might come down on, but the blinds-materially closed over the fire escape leaving perhaps a foot in thecentre that it didn’t cover; I did not measure it to see whether it-was as wide as a foot; I think a man could reach it easy enough, because the windows were close together; it wasn’t a big distance to reach, just about the width of the blind; all he would have to-reach over would be the blind.”

It is evident that the inspector before the fire, with a full knowledge of the presence and effect of these blinds, did not deem them a serious hindrance to the use of the fire escape, gave no order for their removal, and deemed the escape sufficient within-the law. One of the workmen did, in fact, escape by that route, though unable, to say how he did it. What is claimed is that, there is proof that some of the operatives fled to this escape but could not use it on account of the blinds, and we are asked to permit a jury to guess or conjecture that Pauley was one of these without any proof of the fact and in the face of the evidence that, no one who did use it or approach it saw him at all. Now the proof does not show that any one was turned back because he could' not reach the escape. That one could have done so we know, for it was done through all the heat and smoke and confusion. The witness Burkett says, “ seeing the blinds open I went back," but he made no trial or effort. We are not satisfied that the presence of these blinds turned into actionable negligence the situation of the escape which a disinterested inspector had examined and approved. There was no place upon the building where a fire escape could be put which would not, have its inconveniences, its possible perils, and might not after an accident invite criticism. We think the duty imposed by the statute was fairly and fully performed, and even if it was not that we aré not to resort to conjecture and permit a verdict to be based on bare possibilities alone. For the fact to be conjectured is not even made probable by the proof. The groups of eleven and of five who went down with the floors, and among or near whom the intestate was found, were those driven back from the elevator fire escape by the heat and the smoke, whom George Burkett found lying on the floor in a suffocating condition as he crawled away; a crowd of twenty-five who “got no further than that” and died where they lay. Hone of them were in Gaul's room, which opened upon the escape where the blinds were, for the witness on his way back from that locality found them in the wing huddled together and choking with the smoke. The proof not only fails to encourage the conjecture, but leaves it without justification even as a guess. There is no ground upon which a finding that the death of the intestate was due to the shute or the blinds, or the absence of a scuttle which nobody reached and nobody tried to reach, can be sustained. A mere conjecture built upon a bare possibility will not suffice to transfer the money or property of one man to the possession and profit of another. As we said in Bond v. Smith, 113 N. Y., 378; 22 St. Rep., 666, food for speculation will not serve as the basis of a verdict.

It is difficult not to sympathize with the sufferers from this deplorable accident even at the expense of one’s better judgment, but we must be governed by our conviction that no cause of action was established.

The order of the general term should be reversed, and judgment be entered on the nonsuit for the defendant, with costs.

All concur, except Maynard, J., taking no part.  