108 N.E. 830 | NY | 1915
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *533
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.,
(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 (
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,
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 punishable *536
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. NewCastle Gateshead W.W. Co., L.R. [2 Exch. Div.] 441; Taylor
v. L.S. M.S. Ry. Co.,
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,
This principle of law is illustrated in Union Pacific RailwayCo. 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, but 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. (
Marino v. Lehmaier (
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,
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 (
McGrath v. N.Y.C. H.R.R.R. Co. (
In Graham v. Manhattan Ry. Co. (
In Briggs v. N.Y.C. H.R.R.R. Co. (
In Donnelly v. City of Rochester (
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 perse.
Hoffman v. Union Ferry Co. of Brooklyn (
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.,
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. No 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 truck 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 nonsuit 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.
Dissenting Opinion
The intestate and the defendant were employee and employer. The complaint alleges that the death of the intestate was caused solely by the *544 negligence of the defendant, in that the building consumed by fire, in which the intestate was burned to death, was provided with stairs and elevator as means of passing from one floor to another and there was no fire escape on the outside of it or elsewhere, or no ladder nor stairs as a means of escape to the roof, or no automatic sprinkling device nor any other to prevent and check the spread of fire, and the said defendant was negligent in not providing each of such lacking appliances. The allegations of negligence were supported by proof.
The Labor Law (Laws of 1909, ch. 36 [Cons. Laws, ch. 31]) provided at the time of the accident: "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." (Section 82.) The section also prescribes the plan and method of construction of the fire escapes, and section 83 provides for any other plan or style approved in writing by the commissioner of labor. The trial justice, having correctly held that the building was, within the sense of the statute, a factory, charged the jury that the negligence of the defendant was established as a matter of law by his failure to provide a fire escape. A question presented by the briefs and argument of counsel is, was it, as a matter of law, negligence on the part of the defendant to refrain from providing the fire escapes.
The statute creates a duty independent of any direction or approval on the part of the commissioner of labor. (Arnold v.National Starch Co.,
In Fluker v. Ziegele Brewing Co. (
In McGrath v. N.Y.C. H.R.R.R. Co. (
In McRickard v. Flint (
In Donnelly v. City of Rochester (
In Briggs v. N.Y.C. H.R.R.R. Co. (
In Graham v. Manhattan Ry. Co. (
In Koester v. Rochester Candy Works (
In Scott v. International Paper Co. (
In Kelley v. N.Y. State Railways (
In Barr v. Green (
In Macauley v. Schneider (
In McCambley v. Staten Island M.R.R. Co. (
In Sitts v. Waiontha Knitting Co. (
The principle that the violation of a statute does not establish conclusively negligence on the part of the violator is applicable also to a plaintiff charged with contributory negligence. (Hoffman v. Union Ferry Co. of Brooklyn,
The principle has recognition in other jurisdictions. (GrandTrunk Railway Co. v. Ives,
It would be supererogation to vindicate at this time our adoption of the principle. It has existed through more than half a century and the legislature has not deemed it wise or beneficent to annul or modify it — a convincing proof that we have correctly applied the enactments. It therefore is not necessary, and I think it unwise, to substitute confusion and uncertainty for clarity and certainty. In determining whether or not the defendant was negligent the jury should have been permitted and required to consider, in connection with the statute and its violation, the construction of the shed, the means of egress, the manner of its use and occupation and all the facts tending to show that danger from its remaining without a fire escape *553 should or should not have been reasonably apprehended or that defendant failed or did not fail to use the care which the circumstances of the case demanded.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HOGAN, CARDOZO and SEABURY, JJ., concur with CUDDEBACK, J.; COLLIN, J., reads dissenting opinion; HISCOCK, J., dissents on ground that it does not appear that intestate's death was caused by lack of fire escapes.
Judgment affirmed.