
    Pauley v. Steam-Gauge & Lantern Co.
    
      (Supreme Court, General Term., Fifth Department.
    
    October 23, 1891.)
    1. Fire-Escapes—Negligence—Evidence.
    The only means Of escape from the fifth story of a factory which was on fire, was a fire-escape, on a wing of the building which extended downward only to about 15 feet of the ground. Near the foot of the fire-escape was a shute into which a person dropping from the fire-escape was liable to fall. Just before the fire, plaintiff’s intestate, an employe in the factory, was seen on the fifth floor. After the fire he was found near the foot of the shute upon and covered with debris of the building. Held, that there was evidence to warrant a finding that his death was caused by falling into the shute in attempting to descend the fire-escape.
    2. Same—Duty of Factory Owner.
    The factory in which deceased was working was a large, seven-story building, without any escape to the roof, and with only one fire-escape, the one on the wing, which could be used from the inside, access to the one on the main building being obstructed by iron shutters at the windows. Had there been an escape to the roof, one could have got from there to adjoining buildings. Held, that under Laws 1886, c. 409, § 10, as amended by Laws 1887, c. 462, providing that fire-escapes shall be provided on the outside of all factories three or more stories high, and stairs or ladders shall be provided on the inside from the upper story to the roof, it should have been left to the jury whether the proprietor was not 'guilty of negligence in failing to provide proper escapes.
    Exceptions from circuit court, Monroe county,
    Action by Jacob Pauley, administrator of Frank A. Pauley, deceased, against the Steam-Gauge & Lantern Company, to recover damages for the death of deceased, alleged to have been caused by defendant’s negligence. A nonsuit was granted, and plaintiff appeals.
    Reversed.
    Argued before Dwight, P. J., and Lewis and Macomber, JJ.
    
      J. & Q. Van Voorhis, for plaintiff. Louis Marshall, for defendant.
   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 nonsuit 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 30 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 14 and 15 years of age. The factory building was seven stories high, including a basement and subbasement. The basement was the floor immediately below the level of the ground, and the subbasement 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 30 to 45 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 leadipg into the wing from the court. About 10 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 6 or 7 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 15 feet above the surface of the court. The¡-e was art 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 subbasement. 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 subbasement 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 60 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 subbasement, 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 use this 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 quite serious injuries in coming in contract 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 onto the roof of the box factory, a distance of two stories.

Section 10, c. 409, Laws 1886, as amended by chapter 462, Laws 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 subbasement, 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 subbasement 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 at bar. Schwander was a lad 19 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 ttie 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 nonsuited at the circuit, and the general term of this department set aside the nonsuit, 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 14 and 15 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 not 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. All concur.  