29 A.D. 346 | N.Y. App. Div. | 1898
There was absolutely no evidence to sustain a finding that the defendants were guilty of any negligence. 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 was attached to the building which seems to have complied with the law.
By section 499 of the Consolidation Act (Chap. 410, Laws of 1882, as amended by § 34, chap. 275, 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 provided with 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 provided for connecting the fire escapes with the yard of the defendant’s property and that ladder was hung upon the fire escape 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 was 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 case comes directly within the case of McAlpin v. Powell (10 N. Y. 126), which was an accident happening upon afire 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. Fitchburg R. R. Co., 145 N. Y.
We think, upon the undisputed evidence, that this accident arose, not from any negligence on the part of the defendants, hut from the unauthorized use hy 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.
Van Brunt, P. J., Patterson, O'Brien and McLaughlin, JJ., ■concurred.
Judgment affirmed, with costs.