Amberg v. Kinley

• Decision Date: 13 April 1915
• Citation: 214 N.Y. 531,108 N.E. 830
• Parties: AMBERG v. KINLEY.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 531

108 N.E. 830

AMBERG

v.KINLEY.

Court of Appeals of New York.

April 13, 1915.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Anna L. Amberg, as administratrix of W. Amberg, deceased, against Charles H. Kinley. From a judgment of the Appellate Division (160 App. Div. 232,145 N. Y. Supp. 394) affirming a judgment for plaintiff, defendant appeals. Affirmed .

The action is to recover damages for the death of the plaintiff's intestate, who lost his life, as it is alleged, through the defendant's violation of the Labor Law, relating to fire escapes on factories.

The defendant was engaged in operating a tannery, and the plaintiff's intestate at the time of his death was in the defendant's employ. One of the buildings connected with the tannery was a drying loft. The loft was a wooden building 123 feet long and 43 feet wide, and, according to the plaintiff, was three stories high. The floor of the first story was the ground; the second and third stories had each a floor made of boards. It was about 16 feet from the ground, or from tan bark banked around the building on the outside, to the top story. There were seven bents in the building, and on the second and third floors there were ventilators in each bent. The ventilator openings were 8 feet wide and 3 feet high, were on a level with the floor, and each was covered by a pair of shutters . The shutters were fastened at the top, and could be easily swung outward at the bottom.

The plaintiff's intestate and a man named Mott were at work in the loft on the day the former lost his life. They were taking hides soaked with oil out of a wheel on the first floor, loading them on a truck, taking them up by an elevator to the top floor, and there hanging them on sticks over the beams of the ceiling to dry. At about 3 o'clock in the afternoon they took a truck loaded with hides and placed it on the elevator. Then Mott went out into the yard for some purpose, and did not return for about 10 minutes. On returning he found the loft in flames. It burned very rapidly, and was entirely consumed. After the fire the body of the plaintiff's intestate was found on the ground under the place where he and Mott had been hanging the hides on the third floor before the fire, and the truck was not far from his body.

Collin and Hiscock, JJ., dissenting.Halsey Sayles, of Eimira, for appellant.

Richard H. Thurston, of Elmira, for respondent.

CUDDEBACK, J. (after stating the facts as above).

[1] At the time of the fire section 82 of the Labor Law (Consol. Laws, c. 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 lavor are given. Arnold v. National Starch Co., 194 N. Y. 42, 86 N. E. 815,21 L. R. A. (N. S.) 178. 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 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, 34 Am. Rep. 536. 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 (Laws 1873, c. 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.’ 78 N. Y. 314, 34 Am. Rep. 536.

[2] 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. Dec. 458; Racine v. Morris, 201 N. Y. 240, 94 N. E. 864; Watkins v. Naval Colliery Co. [1912] App. Cas. 693; 27 Halsbury's Laws of England, 192.

[3] 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 punishablesolely 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 W. W. Co., L. R. 2 Exch. Div. 441; Taylor v. L. S. & M. S. Ry. Co., 45 Mich. 74, 7 N. W. 728,40 Am. Rep. 457.

[4] 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, 14 Sup . Ct. 619, 38 L. Ed. 434;Hayes v. Michigan Central Ry. Co., 111 U. S. 228, 239, 4 Sup. Ct. 369, 28 L. Ed. 410;Kelley v. N. Y. State Rys. Co., 207 N. Y. 342, 100 N. E. 1115;Fluker v. Ziegele Brewing Co., 201 N. Y. 40, 93 N. E. 1112, Ann. Cas. 1912A, 793.

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 (Hayes v. Michigan Cent. R. Co., 111 U. S. 240, 4 Sup. Ct. 369, 28 L. Ed. 410), 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 personalinjury,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 the jury in passing upon the question of the liability of the defendant.’ 201 N. Y. 43, 93 N. E. 1113, Ann. Cas. 1912A, 793.

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.

Knupfile 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. Ziegele Brewing Co., supra, and was decided in the same way.

Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572,61 L. R. A. 811, was a case involving section 70 of the Labor Law adopted in 1897 (Laws 1897, c. 415). Section 70 provided that a child under the age of 14 years should not be employed in any factory in this state, and that a child over 14 and under 16 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 boy 13 years and 3 months old, was employed in the defendant's printing establishment, and his fingers were caught in a cogwheel of a printing press and were cut off. The court placed the case in the category of those wherein the...