Amberg v. . Kinley

Cuddeback, J. At the time of the fire, section 82 of the Labor Law (Cons. Laws, ch. 31) contained the following requirement with regard to fire escapes on factories: “Such fire escapes as may be deemed necessary by the commissioner of labor shall be provided on the outside of every factory, in this state consisting of three or more stories in height. ” It has been held that the statute is mandatory, and that the owner of a factory may not delay action until the directions of the commissioner of labor are given. (Arnold v. National Starch Co., 194 N. Y. 42.) There were no fire escapes on the building in which the plaintiff’s intestate was burned. (a) The court charged the jury as follows: “It is my duty to say to you that this building was in legal effect a factory and that an absolute duty was imposed upon this defendant to provide a fire escape for this building, and that there was a violation of this duty as the proof indicates so that if you find that the failure to provide the fire escape was the direct cause of the death of the decedent, you will find a verdict in favor of the plaintiff, unless you find that the defendant has established affirmatively and by a fair preponderance of evidence that decedent was himself negligent, and that his negligence contributed in some way to cause the accident * * *. The negligence of the defendant is established as a matter of law by his failure to provide a fire escape. You *535 have only to determine whether or not the defendant’s failure was the cause of the accident outside of the question of contributory negligence.” To this charge the defendant duly excepted. I regard the charge as correct and the case as falling within the doctrine of Willy v. Mulledy (78 N. Y. 310). In that case, which was an action in negligence, the plaintiff’s wife was suffocated in her apartments on the third story of a tenement house by reason of a fire in a lower story of the building. A statute of the state (L. 1873, ch. 863) required that such tenement houses should be provided with fire escapes and made it a misdemeanor to violate the statute. The defendant’s house had no fire escape. The court said: “Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire escape, and the duty was imposed' for the sole benefit of the tenants of the house, so that they would have a mode of escape in the case of a fire. For a breach of this duty causing damage, it cannot be doubted that the tenants have a remedy. It is a general rule, that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative; and where a duty is imposed, there must be a right to have it performed.” (p. 314.) In a suit upon a.cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on- the- part of- the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. (Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Racine v. Morris, 201 N. Y. 240; Watkins v. Naval Colliery Co., L. R. 1912 [App. Cas.] 693; 27 Halsbury’s Laws of England, 192.) -Whether a statute gives a cause of action to a person injured by its violation, or whether -it is intended as a general police regulation, and ■ the violation made pun *536 ishable solely as a public offense “must to a great extent depend, on the purview of the legislature in the particular statute and the language which they have there employed.” (Atkinson v. New Castle & Gateshead W. W. Co., L. R. [2 Exch. Div.] 441; Taylor v. L. S. & M. S. Ry. Co., 45 Mich. 74.) Actions to recover damages for the breach of a statutory duty are not to be confounded with those based solely on negligence. In the latter class of cases the violation of a statute or an ordinance, if it has some connection with the injuries complained of, is evidence, more or less cogent, of negligence which the jury may consider with all the facts proved. (Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 283; Hayes v. Michigan Central Ry. Co., 111 U. S. 228, 239; Kelley v. N. Y. State Rys. Co., 207 N. Y. 342; Fluker v. Ziegele Brewing Co., 201 N. Y. 40.) This principle of law is illustrated in Union Pacific Railway Co. v. McDonald and Fluker v. Ziegele Brewing Co. (supra). In Union Pacific Ry. Co. v. McDonald the defendant failed to erect a fence required by statute to protect cattle and horses, and by reason of the absence of the fence a child was injured. The court, quoting, said: “ And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence.” Fluker v. Ziegele Brewing Co. was a case where a public way was obstructed by beer kegs placed therein by the defendant in violation of a general city ordinance prohibiting street obstructions. This court said: “The violation of the ordinance did not subject the wrongdoer to a civil liability for damages; but its disregard was something, which, in connection with the other facts of the case, furnished some evidence for the consideration of *537 the jury in passing upon the question of the liability of the defendant.” (p. 43.) A brief review of the decisions in this court cited to impeach the judge’s charge as to the defendant’s liability will show that they either fall within the class wherein the violation of an enactment gives no personal cause of action, hut is simply evidence of negligence, or else that the decisions did not turn upon that question, and what was said upon the subject was aside from the case. Knupfle v. Knickerbocker Ice Co. (84 N. Y. 488), cited by the defendant, was a case where the ice company’s team was left untied and unattended in the public street, in violation of a municipal ordinance. The horses started and the plaintiff’s intestate was run over and killed by the wagon to which they were attached. The ordinance in that case was a general police regulation for the use and occupation of the public streets and was not enacted for the benefit of any particular class of persons. It was a case of the same nature as Fluker v. Zeigele Brewing Co. (supra), and was decided in the same way. Marino v. Lehmaier (173 N. Y. 530) was a case involving section 70 of the Labor Law adopted in 1897 (L. 1897, ch. 415). Section 70 provided that a child under the age of fourteen years should not be employed in any factory in this state; and that a child over fourteen and under sixteen years of age should not be so employed without the certificate of a health officer. A violation of this statute was made a misdemeanor. The plaintiff, a hoy thirteen years and three months old, was employed in the defendant’s printing establishment and his fingers were caught in a cog wheel of a printing press and were cut off. The court placed the case in the category of those wherein the violation of a statute is evidence of negligence in an action by one injured through its violation, and in that respect the decision has since been followed. *538 (Koester v. Rochester Candy Works, 194 N. Y. 92.) The legislature intended by section 70 of the Labor Law to regulate and in some cases forbid child labor in factories, regarding it as detrimental to the public welfare and undesirable for many reasons. The object sought was quite as much for the benefit of the public as for the protection of the child. A child employed in a factory is not only exposed to risk of accidental bodily injury, but to the far greater risk of physical, mental and moral deterioration, which will prevent his becoming a useful member of the community. The wrong done to the child by a violation of the statute is a wrong done to the whole social order. The number of children who are injured accidentally through their employment about machinery in factories is small compared with the great number so employed, who suffer indirectly in the stunted growth of their minds and bodies. The decision in the Marino case, that the child labor law was intended primarily for the public benefit, and that a violation thereof is merely evidence of negligence, is in nowise contrary to the ruling of the court in Willy v. Mulledy (supra). McRickard v. Flint (114 N. Y. 222, 227) was a case which did not involve the question as to the full force that should be given to proof of the violation of a statute causing personal injuries. The case arose under section 5 of chapter 547, Laws 1874, providing that elevator shafts should be properly guarded. The trial judge charged that if any person failed to comply with the requirements of the statute, he was, prima facie guilty of negligence, to which exception was taken. This court said that the charge “ had reference to the failure to perform the statutory duty, unqualified by. any circumstances bearing upon the question, "and was not'necessarily applied to the present case so as to treat the question of negligence of the defendant as: one of law,” The *539 court then went on to say further, that there was other evidence in the case to justify the finding of the defendant’s negligence, and sustain the plaintiff’s recovery. In the McRickard case, therefore, the court expressly refused to consider how far the failure to perform a statutory duty to guard the elevator shaft bore as matter of law on the defendant’s liability. It was not necessary to decide that question. McGrath v. N. Y. C. & H. R. R. R. Co. (63 N. Y. 522) was, a railroad crossing case, and there was no flagman at the crossing as required by a municipal ordinance. The trial judge refused to receive the ordinance in evidence, which this court held was erroneous. Whether proof of the violation of the ordinance established liability, or only showed negligence, it was in either case error to exclude it. In Graham v. Manhattan Ry. Co. (149 N. Y. 336, 341) there was a nonsuit. The plaintiff was injured while on the platform of one of the cars of the defendant’s elevated railroad. The court, in considering the facts to show that the nonsuit was erroneous, said: '“Again, the defendant’s disregard of the statute which required gates upon every passenger car used upon its elevated railroad, and that they should be kept closed while the car was in motion, was also evidence of its negligence.” What kind of evidence, or the force thereof, the court did not say, nor was it necessary for the court to say in rendering its decision. In Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26, 30) there was a general ordinance regulating stove pipes, and the court charged “ that putting up the stove pipe in a manner forbidden by the city ordinances, was evidence of negligence, which the jury had a right to consider.” The only question in this court was whether there was any evidence to show that non-compliance with the ordinance in any manner contributed to the injury sued for. The court found there was, and that there was no error *540 in allowing the jury to take the ordinance into consideration. A judgment for the plaintiff was affirmed. The decision is not an authority either way in the case at bar. In Donnelly v. City of Rochester (166 N. Y. 315) one of the defendant’s ordinances relating to guards about area-ways was violated by an abutting property owner, not by the city. The city was held liable for the failure to main- * tain its streets reasonably safe and secure, and the violation of its own ordinance was some evidence of its neglect of duty. In Beisegel v. N. Y. C. R. R. Co. (14 Abb. [N. S.] 29) the plaintiff was struck by the defendant’s train and had a judgment. The court had charged that the violation by the defendant of a municipal ordinance regulating the speed of trains was some evidence of negligence. This court held that the ordinance had the force of a statute and that the running of a train in violation of its provision was an unlawful act, and that it was proper to show the unlawfulness of the act by which the injury was received in an action against the parties committing the act. The reasoning of the court in this case would apparently justify a charge that the violation of the ordinance was negligence per se. Hoffman v. Union Ferry Co. of Brooklyn (47 N. Y. 176) and similar cases which hold that the violation of a statute is not conclusive evidence of contributory negligence on the part of a plaintiff, only illustrate the familiar principle that although a party is in fault, yet if that fault does not in any way contribute to an injury, the injured party may have an action against the wrongdoer to whose acts the injury is attributable. To the same effect is Platz v. City of Cohoes (89 N. Y. 219). I think it is unnecessary to make further reference to the decided cases. There is no precedent shown, and I venture to say that none can be found in this court, which requires a holding that a violation of the Labor Law in *541 regard to fire escapes on factories, where a violation causes injury to a person employed in the factory, is simply evidence of negligence and does not in and of itself establish liability, though the question involved has been a mooted one at the Appellate Divisions. (Gelder v. Internat. Ore Treating Co., 150 App. Div. 184; Kiernan v. Eidlitz, 109 App. Div. 726.) The case here under consideration is controlled by what Judge Earl said in Willy v. Mulledy (supra), and there was no error in the charge of the trial court as to the extent of the defendant’s liability. (b) The defendant also argues that the building in this case was not a factory within section 82 of the Labor Law as the section stood when the accident happened, and that the court erred in charging* the contrary. The proof shows that the defendant was the proprietor of a tannery, and that one of the buildings connected with the tannery and used in the work of. manufacturing leather was this dry loft which burned. The statute says that the term “ factory ” should be construed to include any mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor. Certainly, on the day of the accident the plaintiff and the witness Mott were oiling hides and hanging them up to dry in this loft. The building comes, within the precise definition contained in the statute, and no argument can make it plainer. (c) The contention of the defendant further is that it was error for the court to charge that the building was three stories high within the meaning of the Labor Law. The evidence showed that the building contained a first floor which was the ground, where the hides were oiled, and above-that a second and a third story where the hides were hung up to dry. bio argument can amplify the evidence that the building consisted of three stories in height. It is true that tanbark was banked up to the height of two or three feet around the bottom of the *542 building, but that could not affect the number of stories which the structure contained. (d) The defendant also argues that the failure to provide fire escapes was not the cause of the plaintiff’s death. The plaintiff and the witness Mott had been hanging the hides on the third floor of the building on the day of the fire. They would load a truck with hides, place it on the elevator, carry the load to the third floor, and there hang up the hides. Shortly before the fire, the deceased and Mott loaded the truck and placed it on the elevator; then Mott went out into the yard. The deceased at that time was standing on the elevator with the truck. That was the last anybody saw of him alive: When Mott returned after an absence of about ten minutes, the building was on fire. After the fire the body of the deceased was found under the place where before the fire he and Mott were hanging hides on the third floor, and not far from his body was the truck. The jury might have found that the deceased, after the departure of Mott, went on with the work in which he was engaged, the same as he had been doing before, viz., that he took the loaded trúck to the third floor and proceeded to hang up the hides when the fire occurred. If not that, he must have stood idle after Mott went away and continued idle for the greater part of the ten minutes that Mott was gone. If he had remained idle on the first floor, it is likely he would have escaped from the building. In connection with this same subject, the defendant argues that if the deceased was on the third floor of the building, the ventilators afforded him means of escape as ample as any fire escape. These ventilators were on a level with the floor, and were only three feet high. The criticism of the defendant’s argument made by counsel for the plaintiff is that the decedent in order to escape by way of the ventilators would have been compelled to lie down on the floor and roll out of the building and drop sixteen feet to the tanbark- below. That criticism *543 seems to be justified. The jury could have found that if the factory had been provided with fire escapes, the deceased could have got to the ground by means thereof in safety. (e) The defendant also says that the court erred in charging that the burden of proving contributory negligence on the part of the deceased rested upon the defendant. This is based on the failure of the plaintiff to put in evidence the notice required by the Employers’ Liability Law. The complaint alleged that a notice was given to the defendant, stating the time, and place, and cause of the decedent’s injury, pursuant to the statute, and the answer admits that the defendant received a paper writing purporting to state the time, place and cause of the injuries mentioned in the complaint. The notice was not, however, put in evidence. The failure to put it in evidence resulted perhaps from a mistake or misunderstanding for which the plaintiff was at any rate not wholly to blame. At the outset of the trial, the court ruled that the complaint did not show a cause of action under the Employers’ Liability Law. Later on, the court reversed that ruling. It may be that if the trial had proceeded without interruption, the plaintiff would have offered the notice in evidence. At any rate, under the circumstance, the defendant should have called particular attention in his motion for a non-suit to the fact that there was a failure of proof on the part of the plaintiff, which might have been supplied, but nothing of the kind occurred. The defendant had the notice in his possession, and if it was insufficient in any way, he had only to submit it to the court. Upon the whole case, I recommend that the judgment appealed from be affirmed, with costs.