
    KELLY v. SMITH et al.
    (Supreme Court, Appellate Division, First Department.
    May 6, 1898.)
    Negligence—Dangerous Premises—Evidence.
    In an action to recover damages for injuries resulting in tlie death of plaintiff's intestate, an infant, it appeared that while he and his brother were playing, without permission, on a ladder at the lower end of a fire escape on defendants’ building, he fell and received the injury in question. The ladder had been provided in accordance with defendants’ duty, and was in good condition; and, even had they been responsible for its being where children could reach it from the ground (which was not- shown), it would not have been a dangerous object, or one that could inflict injury except by an unauthorized use of it. Held, that the facts imposed no liability on the defendants, and the complaint was properly dismissed.
    Appeal from trial term.
    Action by Thomas Kelly, administrator of Michael Kelly, deceased, against Sophia B. Smith and others. From a judgment dismissing the complaint on a trial before a jury, plaintiff appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    .Edward B, La Fetra, for appellant.
    Herbert 0. Smyth, for respondents.
   INGRAHAM, J.

There was absolutely no evidence to sustain a finding that the defendants were guilty of any negligeifce. The law imposed upon the defendants the duty of maintaining a fire escape upon this building, and, in the performance of that duty, a fire escape Avas attached to the building which seems to have complied with the laAV. By section 498 of the consolidation act (chapter 410 of the Law’s of 1882, as amended by section 34 of chapter 275 of the Laws of 1892), it is provided that every dwelling house occupied by or built to be occupied by three or more families above the first story shall be proA'ided Avith such good and sufficient fire escapes as shall be directed by the superintendent of buildings, and that all scuttles and ladders shall be kept so as to be ready for use at all times. In performance of this duty, and under the direction of the defendants, a ladder was proA’ided for connecting the fire escapes with the yard of the defendants’ property, and that ladder was hung upon the fire escapes, so that it could be used in case of fire, and thus afford means for the occupants of the house to reach the yard. The ladder Avas hung on the second balcony, from which place it would not reach the ground, but would be available for use in case of necessity by hanging it upon the first balcony. It seems that boys in the neighborhood were in the habit of going in this yard, and sometimes would unhook the ladder from the second balcony, and hang it.upon the first balcony, where they would use it in their-play; that, upon the morning of the day of the accident, this ladder had been taken from the place where it was usually kept, and hung upon the first balcony, so that the bottom of the ladder was either upon the ground or close to it. The deceased and his brother, about seven years of age, were in the yard, and commenced to use this ladder, “playing fireman.” The deceased climbed up to the top of the ladder, when Ms brother started to climb up after him, and the ladder shook, and deceased fell, sustaining injuries which resulted in his death. At the-time he fell, one hook of the ladder appears to have been detached from the fire escapes, the ladder being held by the other hook. These boys had been playing upon this ladder for some time during the morning. One of the inmates of the house told the boys to get off the fire escape, but, notwithstanding that, they continued to play upon it. When the boys first commenced to play upon the ladder, both hooks were on the fire escape; but in some way, just before the accident, one of the hooks had become detached. There is no evidence as to when this ladder was taken down from the second fire escape, and placed upon the first, so that it reached the ground. The janitor, a witness called-by the plaintiff, testified that, two days before the accident, he hung the ladder upon the second fire escape, and that, after that, he did not notice the ladder until after the accident.

There is not a particle of evidence to show that these defendants did anything except what the statute required them to do; i. e. provide a ladder as a part of the fire escape. It was kept so as to be ready for use at all times. To comply with the requirements of this statute, it was necessary that the ladder should be kept where it could be reached from the first platform of the fire escape, and so afford means of reaching the ground in case it was needed. It was placed in a safe position, in which no.one could be injured, and removed from that position, so as to connect it with the ground, so far as appears, by some one not in the employ «of the defendants, or for whose acts the defendants were-not responsible. But, even in the position in which it was at the time of the accident, it was not in any way a dangerous machine, or one that could injure any one, except by an unauthorized use of the ladder, and a person so using it falling from it. The deceased was not, either directly or indirectly, invited by the defendants to use this ladder; nor was it a part of the building which was to be used by the tenants, or-any one in the building, except in case of fire. Any one attempting to use this fire escape did so at his own risk, and the defendants were no more liable for a fall from this ladder than they would have been for a fall upon any of the stairs or floors of the building when such fall was not caused by any defect in the construction or maintenance of the stairs or floor upon which the fall was caused. The deceased was warned not to use the ladder, but he insisted upon using it; and even if it had been placed in the position in which it was at the time tif the accident by the defendants, and used by the deceased as it was,. there would have been no evidence of negligence. The ladder was-properly constructed for the use to which it was to be put, and was provided with proper hooks to secure it to the fire escape. It was not intended for the use to which the deceased put it at the time of the accident. It"was not a part of the means provided by the defendants for access to the building or the yard. It was not a dangerous machine, the danger of which was not apparent to one attempting to use it; and the accident resulted solely from the unauthorized use of it by these boys, when one of them slipped and fell, not because of any defect in the construction or condition of the ladder at the time it was used, but because of the manner of its use by them, for which the defendants were not in any way responsible.

The case comes directly within the case of McAlpin v. Powell, 70 N. Y. 126, which was an accident happening upon a fire escape. There the court say:

“It was put up only for a fire escape, to be used -for the protection of life in case of danger from fires, and was not intended, and was never used, as a balcony. * * it bore no indication that it was designed for general use, and furnished no invitation or attraction to young children, any more than the roof of a stoop or piazza which projects under the window of a dwelling house, and is easy of access to persons in the vicinity. Under such a state of facts, and where a person thus voluntarily exposes himself to danger, and is injured, there is no rule of law which authorizes a recovery.”

See, also, Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068; Miller v. Woodhead, 104 N. Y. 471, 11 N. E. 57; Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566.

We think, upon the undisputed evidence, that this accident arose, not from any negligence on the part of the defendants, but from the unauthorized use by these boys of this ladder, from which the deceased fell, for which the defendants were not responsible.

The complaint was therefore rightfully dismissed, and the judgment should be affirmed, with costs. All concur.  