
    Merta Acton, as Ancillary Administratrix, etc., in the State of New York of Norman Acton, Deceased, Respondent, v. Frederick A. Reed and Endoise Barnett, Appellants.
    
      Negligence — death'in a hotel fire — the absence of standpipes and the fact that adoor of communication with a stairway was locked— when immaterial.
    
    In an action brought against the proprietors of a hotel in the city of Hew York to recover damages resulting from the death of the plaintiff’s intestate, who lost his life as the result of a fire in the hotel, the fact that there were no standpipes in the hotel, as required by section 103 of the Building Code of the city of Hew' York, does not entitle the plaintiff to recover where it appears that even if the hotel had been provided with standpipes they could not and would not have been used at the fire, and that, consequently, their omission in no way contributed to the decedent’s death.
    In such a case liability on the part of the defendants cannot be predicated upou the fact that the door affording communication with a stairway leading from the sixth floor of the hotel, upon which floor the decedent’s room was located, to the lower floors was locked, where it appears that the decedent made no attempt to use such stairway, but proceeded by another stairway from the sixth to the fifth floor.
    Semble, that if the omission of the standpipes had contributed to the decedent’s death the defendants would be liable.
    Appeal by the defendants, Frederick A. Reed and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the - 26th day of Hay, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 26th day of May, 1904, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank S. Black, for the appellants.
    
      Henry L. Scheuerman, for the respondent.
   McLaughlin, J.:

On the 22d of February, 1902, Norman Acton, the husband of the plaintiff, while a guest at the defendants’ hotel, lost his life as the result of a' fii'e which occurred therein, and this action was brought to recover the damages alleged to have been sustained by, the plaintiff on the ground that his death was due to the negligence of the defendants. She has had a recovery and the defendants appeal.

The deceased had been a guest at the hotel from May preceding the time the fire occurred, and as such occupied á room on the sixth floor. His death was due to suffocation by smoke while endeavoring to escape from the burning building. The principal acts of negligence claimed to have been established at the trial, and by reason of which the recovery is sought to be sustained, are that a door upon the sixth floor leading to an interior stairway was locked at the time of the fire; that there were no diagrams in the room occupied by the deceased indicating how to get out of the building, as required by section 762 of the Greater New York charter (Laws of 1897, chap. 378), and that there were no standpipes in the building, as required by section 102 of the Building Code of the city of New York, or other proper appliances for extinguishing a fire.

There is little dispute between the parties as, to the facts leading up to and immediately connected with the decedent’s death, though the cause or origin of the fire is involved in much doubt. Shortly after midnight oh the 22d of February, 1902, the armory of the Seventy-first Regiment, National Guard, State of New Yorb, situatéd on the opposite side of the street from the hotel ■ in question, was' discovered to be on fire. Thhre was a high wind at the time and the sparks and cinders were carried in the direction of the hotel. The defendants, apparently appreciating the liability of the hotel taking fire, aroused the guests, cautioned them about keeping the windows in their rooms closed,, sent persons to the various floors and roof, notwithstanding which, about an hour after the fire started in the armory, one was discovered at the foot of an elevator shaft in the hotel, and before it could be extinguished it had extended up the shaft, by reason of which, or the smoke, or both, several persons, including the intestate, lost their lives.

The evidence, so far as it relates to the deceased, is not very satisfactory. It appears, however, from the testimony of the plaintiff’s witness Knott, who was an assistant housekeeper in the hotel and occupied a room next to the one occupied by the deceased, that she was aroused by the housekeeper between half-past one and two o’clock, that she and the housekeeper went to each room on the sixth floor of the hotel; aroused the guests therein ; informed them of the fire raging in the armory and told them to keep the windows of their rooms closed so that the sparks could not enter; that she remembered knocking on the door of the deceased’s room and that after she got through on the sixth floor she went to the other floors doing the same thing; that she subsequently went back to the sixth floor and about that time discovered the elevator shaft situated in the front of the building was on fire; that she then went to her own room to get a coat; that as she came out of her room she saw the deceased come out of his room • fully dressed, with a garment which she thought was an overcoat on his arm; that she saw him lock the door to his room, and then the two, with other guests, passed down a rear stairway to the fifth floor ; and that was the last she saw of him. He was subsequently discovered in a temporary hospital on the ground floor of the hotel, in an unconscious condition, from which place he was taken to a hospital and died shortly after.

. Taking up the alleged negligent acts of the defendants and considering them in the inverse oi’der named, it appears that the hotel had a flat roof and was over 100 feet and less than 150 feet in height, measuring from the curb level at the center of the front of the building to the top of the highest point of the roof beams, and that this, under section 6 of the Building Code of the city of Few York, in the case of flat roofs, was the proper place to take the measurement. And section 102 of the same code required that a building, already erected, which exceeds 100 feet and does not exceed 150 feet in height, and which was not then provided with a three-inch or larger vertical pipe, shall be provided with a four-inch standpipe, running from cellar to roof, with one two-way three-inch Siamese connection to he placed on the street above the curb level, and with one two-and-one-half-inch outlet with hose attached thereto on each floor, placed as near the stairs as practicable. The building did not have the standpipes required. The defendants, therefore, j had failed to comply with the ordinance and weré, prima facie, I negligent if the omission to supply them contributed in any way to the decedent’s death. The ordinance, by reason of the height of the building, imposed a duty on the defendants to erect the standpipes, and their omission to do so gave a cause of action in favor of any one entitled to its observance and injured by the breach. (Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 id. 90; Huda v. American Glucose Co., 154 id. 474.) The trouble, however, with the plaintiff’s case in this respect is that the proof is overwhelming that if there had been standpipes they could not and would' not have been used, and, therefore, the omission to have them in no way contributed to the decedent’s death. The chief of the fire department, who was present at the. fire, testi-l fled that: “ Had there been standpipes in this building at the time of I this fire I would not have used them.” The deputy chief testified / “ 1 would not have been able to use standpipes for this fire if they had been there.” And a chief of battalion testified: “I did” not look for any standpipes and would not 'have used them if they had-been there.” The testimony of these witnesses as to standpipes was not only uncontradicted, but none was offered to the effect that if there had 'been standpipes the same could or would have been used prior to the arrival of the firemen, and to permit'the jury to predicate a finding of negligence upon the absence of such pipes was simply to permit them to invade the field of speculation and base a verdict upon a mere conjecture rather than uppn evidence, which the law requires. As to the fire extinguishers, a fair consideratioti of all the evidence bearing on that subject tended to show there was an adequate supply throughout the building and that the same were in proper condition. Substantially the only evidence to the contrary was the testimony of the witness Coyle, who stated that when he attempted to use one of them on the second floor he was- unable to do so by reason of its corroded condition until he had kicked out the bottom. But when- his whole testimony, is considered, it is apparent that the extinguisher failed to work, no.t by reason of its defective condition, but because «the witness did not know how to operate it.

As to the diagrams, it is claimed that the defendants had failed to comply with section 762 of the Greater New York' charter, which provides that in a hotel there shall be posted in every room “ a card, upon which shall be printed a diagram showing the exits, halls, stairways, elevators and fire-escapes, and in the halls and passageways, signs shall be posted indicating the location of the stairs and fire-escapes.” A fair consideration of all the testimony does not tend to sustain this claim; on the contrary, it appears from the testimony of several witnesses that diagrams were posted in the rooms, halls, and elevators^ and the housekeeper testified it was her duty to see that they were posied in the rooms and when torn down to replace them. But in this connection it must be borne in mind the deceased had been a guest of the hotel since the preceding May, from which time he had occupied the room in which he was on the night of the fire. He had thus had an opportunity to, and from the testimony of the witness Pears it is clear he had familiarized himself with the stairways and exits, having stated to him how he would get out in case of a fire. The fact that after he came out of his room he procéeded by way of the stairs to the fifth floor, indicates that he knew how to get out of the building, so that the absence of a diagram in his room in no way could be said to have been the cause of his death, even if the evidence would have justified a finding to that effect, which it did not, inasmuch as substantially all there is upon that subject is the testimony of one witness to the effect that some time previous to the fire he had several times called upon the deceased and did not observe a diagram in his room-— testimony simply negative in character, which did not overcome the other testimony to the effect that there were diagrams in the rooms.

There was an interior stairway located near the deceased’s roóm, which. led from the sixth floor to the floors below, and testimony was offered to the effect that when the fire broke out the door leading to this stairway was locked. Much testimony was offered on the part of the defendants to the effect that the door was not locked, but at the .conclusion of the trial a question was presented in this respect for the jury. It was of no importance, however, whether it was locked or not, inasmuch as testimony had beén offered, which was uncontradicted, to the effect that the deceased came out of his ■room, locked the door,-and proceeded by another" stairway to the floor below; that he never tried to descend by the interior stairway, and, therefore; even if it be conceded that it was locked, it in no way impeded the deceased’s exit' from the building. And, bearing upon this subject, at the conclusion of the trial, the court was asked to charge that if the jury believed the deceased, “ after locking his door, proceeded directly to the main stairway at the northwest corner of the building and made no attempt to descend by any other stairway, then, and in such event, the question of the alleged locking of the door or doors of-the interior stairways leading from the sixth floor has no bearing upon this case, and cannot be considered by the jury as any evidence of negligence on the part of these defendants which caused or contributed to the death of the said Acton:” The instruction should have been given and the exception to the refusal to charge as requested was well taken.. The error in refusing to give the instruction thus requested is apparent when such request is read in connection with the main charge in which the court stated that in determining whether the defendants were negligent or not the jury would take into, consideration the testimony “ as to whether or not the door leading to the. enclosed stairway on the sixth floor was locked.” Manifestly, if the deceased succeeded by means of one of the main stairways in reaching the fifth floor, it was entirely immaterial whether the door leading to the interior stairway on the, sixth floor was locked or riot, and the jury should -have been so told. .

Other errors are alleged, but it seems unnecessary to here consider them, inasmuch as there must be a new trial by reason of the errors already pointed out.

The judgment and order appealed from, therefore, must be revérsed and a new trial ordered, with costs to appellants to abide the event. ‘ ■

Patter'son, Ingraham and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. . . '  