
    Jacob Pauley, Adm’r, Pl'ff, v. The Steam Guage & Lantern Co., Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Master and servant—Negligence—Fire escapes.
    While the statute does not specify the number of fire escapes, the number required depends upon the size of the factory, the number of employes and the inflammable character of the materials used.
    3. Same.
    Defendant’s factory was seven stories high and consisted of a main building and a wing 100 feet long. There was afire escape on the south of the main building which was closed by iron blinds so as to be practically of no use, and one in the wing next to an elevator, beneath which was a shute leading to the cellar and into which a person descending the fire escape was liable to fall. There was no ladder to the roof. Plaintiff’s intestate was at work in the fifth story of the main building when a fire occurred -and his body was found in the cellar at the foot of the shute. Held, that the evidence was sufficient to show that his death was caused by falling into the shute while attempting to descend the fire escape ; that the case should have been submitted to the jury on the question whether defendant was not guilty of negligence in failing to provide proper escapes from the building, and whether deceased was free from contributory negligence, and that a nonsuit was improperly granted.
    Motion by the plaintiff for a new trial directed to be heard at the general term in the first instance.
    
      J. & Q. Van Voorhis, for pl’ff ; Louis Marshall, for deft.
   Lewis, J.

This action was brought to recover damages for the death of Frank A. Pauley, alleged to have been caused by the defendant’s negligence. The case was tried at the Monroe circuit in January, 1890, and at the conclusion of plaintiff’s evidence a non-suit was granted.

The defendant was an incorporated company engaged in the manufacture of lanterns in the city of Rochester, and on the evening of November 9, 1889, its factory was destroyed by fire, and some thirty or more of the employes were killed. Frank A. Pauley was an employe in the factory and was one of the victims. He was at the time of his death between fourteen and fifteen years of age. The factory building was seven stories high, including a basement and sub-basement The basement was the floor immediately below the level of the ground, and the sub-basement was the floor below that. ' There were two buildings connected ; one called the main building, the other the wing. The main building was located on the river. The wing building was over 100 feet in length. South of and connected with the main building was the shoe factory of Hoyt & Williams, which formed, with the main part of the defendant’s factory, one solid building, Hoyt & Williams’ building being one story higher than the defendant’s building.

Connected with the southerly side of the wing of defendant’s factory was a building occupied as a box factory, which was two stories lower than the wing, and between the building occupied by Hoyt & Williams and the box factory was a court from thirty to forty-five feet wide, extending from a street northerly between said buildings. There were flights of stairs in defendant’s main building, one near the south end and the other in the wing; the latter being located a little to the west of a door leading into the wing from, the court.

About ten feet east of the wing door was an elevator used for carrying freight. The shaft of this elevator was built against the south wall of the wing on the outside, so that it projected southerly into the court six or seven feet. On the east side of this shaft was a fire escape consisting of a ladder of iron staples fastened into the side of the shaft, the lower staple or ring being about fifteen feet above the surface of the court. There was an area at the north end of the court, extending from the elevator shaft to the east side of the court, which was as deep as the sub-basement. In this area and next to the elevator shaft and substantially under this fire escape or ladder, a shute or slide had been constructed for the purpose of sliding boxes into the sub-basement from the court. A person dropping from the ladder was liable to fall into the shute. There was another fire escape, consisting of a ladder attached to the southerly side of the main building and on the east side of the court between two rows of windows. These windows had iron blinds, which were so constructed as to practically prevent the use of the last mentioned fire escape. There was no ladder leading from the top story of the building to the roof. There was a passenger elevator on the west side of the main building, near the south end.

The work of the fire was very rapid, and the well of the passenger elevator acted as a flue to carry the fire to the upper stories.

There was a quantity of benzine, turpentine, varnish, paints, oils and other inflammable materials, including some hay stored in different parts of the building. The deceased worked on the fifth floor, at the southerly end of the main building and in the vicinity of the fire escape last described. There were about sixty men and boys at work upon the fifth floor on the night of the fire. There was proof in the case tending to show that Pauley was at work upon the fifth floor of the factory at the time the fire occurred, but none of the witnesses called testified to having seen him after the fire broke out His body was found in the sub-basement, in the vicinity of the foot of the shute above described. When the fire broke out the employes in the fifth story attempted to escape from the building by going down the stairway, but the smoke and fire prevented, and they then rushed for the fire escape attached to the wing elevator shaft. In getting to that escape they were obliged to pass through a window, and the way thereto was somewhat obstructed by a bench and other objects. A large number of persons in attempting to useethis escape obstructed each other, and many of them became panic stricken, caught hold of each other, and were lying in a mass upon the floor holding each other and calling for help. A considerable number succeeded in leaving the building by this fire escape, but in doing so were seriously burned by the fire coming from the windows and in dropping from the lower rung of the escape several were precipitated into the shute mentioned as being under the escape, falling into the basement of the building and receiving quité serious injuries in coming in contact with the shute, but succeeded in escaping. One person and one person only succeeded in getting out of the building by way of the escape attached to the main building. His access to the escape was rendered very difficult by reason of the blinds obstructing his way. He was not able to explain how he reached the escape; he testified that after the fire he made the attempt to get to this fire escape, but was not able so to do in consequence of the shutters obstructing his way. Evidence tended to show that it was practically useless. There was evidence that a person on the roof of the building could probably have escaped through a door leading from the roof into the highest story in the north end of the Hoyt & Williams building, or by dropping from the roof of the wing on to the roof of the box factory, a distance of two stories. Section 10 of chap. 409 of the Laws of 1886, as amended by chap. 462 of the Laws of 1887, provides that “ fire escapes shall be provided on the outside of all factories three or more stories in height communicating with each floor above -the first, well fastened and secured 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 defendant owed a duty to its employes to comply with this statute and provide for them convenient and proper fire escapes, conveniently and properly located, with free and unobstructed passage thereto. While the statute does not specify the number of fire escapes, the number required depends upon the size of the factory, the number of employes and the inflammable character of the materials in the factory.

The history of the fire tends to show that one escape was not adequate. Pauley’s body was found in the sub-basement lying upon and covered with the debris of the building, near the foot of the shute and several feet distant from a number of bodies which were lying together in the sub-basement of the wing. While the proof failed to show very satisfactorily precisely how Pauley came to his death, the place where his body was found, its position in reference to the debris, its position in reference to the shute, tended to show that he attempted to leave the building by the fire escape and fell into the shute.

We are left, as was stated in Willy v. Mulledy, 78 N. Y., 315, to the necessity of weighing probabilities. We may assume that Pauley was familiar with the fire escapes; that he knew of the -obstructions to the use of the one attached to the main building.

We think there was evidence in this case which should have been submitted to the jury, whether the defendant was not guilty of negligence in failing to provide proper escapes from the building.

When a duty is imposed by statute upon an employer, the law-gives to a person having special interest in the performance a cause of action for a breach thereof causing damages. Willy v. Mulledy, supra, and cases therein referred to.

Had both fire escapes and a ladder to the roof been in a condition to be used, the panic among the operatives would very likely not have occurred, and they might have succeeded in escaping from the building.

The case of Schwander v. Birge, 33 Hun, 186, is, in its facts, similar to the case in bar. Schwander was a lad nineteen years of age, working in a wall paper factory in the city of Buffalo, and came to his death by the burning of the factory.

The alleged negligence of the defendants consisted in not providing proper means of escape from the fifth story of the factory, and particularly in not furnishing a staircase or ladder, or other means of access, to the scuttle in the roof. The evidence in that case failed to show the circumstances under which Schwander was killed.

It was not shown that he would have escaped by the use of a ladder to the roof had one been provided. The plaintiff was non-suited at the circuit, and the general term of this department set aside the non-suit, holding that it was a question for the jury whether his failure to escape was not due to the lack of means of escape, rather than to a lack of effort on the part of the deceased.

It was a question for the jury whether Pauley was himself free from negligence contributing to his death.

He was a lad between fourteen and fifteen years of age, was undoubtedly familiar with the premises and the means of .escape, and the jury had the right to infer that he made efforts to escape, but failed in so doing because of the inadequacy of the fire escapes.

He undoubtedly knew of the escape attached to the main building near where he worked, but may not have known the fact that the iron shutters prevented its being used.

The plaintiff’s complaint stated that Pauley, in attempting to descend the fire escape attached to the wing elevator, fell into the shute, which caused his death.

The defendant claims that there was no proof warranting the jury in finding that his death was caused in that manner, and that, therefore, the nonsuit was proper. We think there was evidence tending to show that he met his death in that way. There was a general allegation in the complaint that his death was caused by the negligence of the defendant, and without any fault or negligence of deceased. If necessary the complaint could have been amended to conform to the facts proven. The plaintiff was not confined upon the trial to proof that the deceased was killed by falling into the shute. He was allowed to prove all the facts, and we do nofe think there was such a variance between the pleadings and the proof as to mislead the defendant to its prejudice in maintaining its defense upon the merits.

The nonsuit should be set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.  