Repucci v. Exchange Realty Co.

• Decision Date: 14 July 1947
• Citation: 321 Mass. 571,74 N.E.2d 14
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ANGELINA REPUCCI & another v. EXCHANGE REALTY COMPANY(and a companion case [1]).

321 Mass. 571

74 N.E.2d 14

ANGELINA REPUCCI & another v. EXCHANGE REALTY COMPANY(and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Essex.

July 14, 1947

May 8, 1947.

Present: FIELD, C.

J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.

Fire Escape. Building Laws. Real Property, Fire escape. Landlord and Tenant, Landlord's liability to tenant or his family or his invitee, Fire escape.

A notice by a State building inspector to the owner of a building in which ten or more persons were employed in a factory, that "in order to comply with the provisions of" G. L. (Ter. Ed.) c 143, certain changes would be necessary, was sufficient to apprise the owner that that chapter applied to the building and, the building thus having been brought within the scope of the statute, it did not cease to be subject to it merely by reason of a sale to a new owner.

Upon a notice by an inspector under Section 21 of G. L. (Ter. Ed. c. 143 as appearing in St. 1943, c. 546, Section 2, to the owner of a building in which ten or more persons are employed in a factory, that Sections 15 to

60 inclusive of c 143 apply to the building, and by the provisions of Section 51 as amended by St. 1943, c. 544, Section 3, a direct right is conferred upon the employees in the factory to have available for their use the prescribed egresses and other means of escape in the event of fire and to have those egresses and means of escape "in good repair and ready for use," and upon the owner, among others, is imposed a reciprocal duty to provide such egresses and means of escape. The requirement of G. L. (Ter. Ed.) c. 143, Section 21, as appearing in St.

1943, c. 546, Section 2, that "egresses and means of escape" from fire in a building therein described "shall be kept . . . in good repair and ready for use," did not refer only to additional egresses ordered by an inspector under the statute, but to every fire escape provided for the building.

The mere facts, that part of a fire escape provided by the owner of a building was attached to an adjoining building not owned by him and that the fire escape was not the only means of escape, did not relieve him of the duty of keeping the part so attached with the rest of the fire escape, in good repair and ready for use under G. L. (Ter. Ed.) c. 143,

Section 21, as appearing in St. 1943, c. 546, Section 2. The right of employees of a tenant in a building described in G. L. (Ter.

Ed.) c. 143, Section 21, as appearing in St. 1943, c. 546, Section 2, to have fire escapes provided for them kept in good repair and ready for use, was not derivative through their employer as a tenant so that it was restricted by the principles of law relating to landlord and tenant or modified by any implied limitation based upon the apparent condition of the fire escapes at the time of the letting to the employer. A finding of a violation of the requirements of Section 21 of G. L. (Ter.

Ed.) c. 143, as appearing in St. 1943, c. 546, Section 2, and of Section 51 as amended by St. 1943, c. 544, Section 3, that the owner of a building therein described shall keep "egresses and means of escape" from fire which he provides "in good repair and ready for use," was warranted by evidence that a cantilever section of a fire escape did not descend normally but stayed horizontal until six persons were upon it, when it went down with a crash, that there was oscillation of the cantilever which probably caused certain nuts to become engaged and prevented normal operation, that this could have been prevented by a locking device, and that without such device the construction was not proper.

TWO ACTIONS OF TORT. Writs in the Superior Court dated March 12, 1945, and February 4, 1946, respectively.

The cases were tried together before Cabot, J. D. H. Fulton, for the defendant.

C. L. Arnold, (J.

Golant with him,) for the plaintiffs.

WILKINS, J. The defendant in these two actions of tort was the owner of a building at 113 Munroe Street, Lynn, part of the fourth floor of which was leased to one O'Callaghan, who ran a factory where were employed the female plaintiff in the first action and the five plaintiffs, all females, in the second action ^[1] (the six being hereinafter called the plaintiffs). On December 5, 1944, a fire occurred in the building, and the plaintiffs were hurt on the cantilever section of a fire escape. There were submitted to the jury as to each of the six plaintiffs a count at common law for negligence in maintenance of the fire escape and a count based upon a breach of duty to provide "proper egresses or other means of escape from fire" due to failure to keep the fire escape "in good repair and ready for use." G L. (Ter. Ed.) c. 143, Section 21, as appearing in St. 1943, c. 546, Section 2; ^[2] Section 51, ^[3] as amended by St. 1943, c. 544, Section 3. There were also submitted to the jury in the first action one count at common law and one count under the statute on behalf of the male plaintiff (the father of the female plaintiff, who was a minor) for consequential damages. G. L. (Ter. Ed.) c. 231, Section 6A, as inserted by St. 1939, c. 372, Section 1. The jury found for the plaintiffs on all the counts submitted to them. The defendant's exceptions relate to the denial of its motions for a directed verdict in its favor on each count.

The following facts could have been found by the jury: On the day in question during the noon hour the plaintiffs were in a room of their employer on the fourth floor when a fire occurred in a freight elevator well at the rear of the building. They started to leave by the "front way" as usual, but were deterred by smoke. They then went out by a door to a fire escape, which descended on the wall of the building and connected by a balcony over a passageway with a fire escape on an adjacent building (known as the Hurley building and not owned by the defendant) which led by metal stairs straight down to a cantilever stairway connecting with the ground. The plaintiffs descended uneventfully by the fire escape to the second floor level. There one of the plaintiffs swung forward a horizontal bar which was across the steps. They all descended the metal steps, eleven in number, and twenty-two and one half inches wide, and walked forward out onto the cantilever, which remained horizontal. When the last plaintiff had gone four or five feet out on the cantilever, it "went down with a crash," and all were thrown to the ground. The cantilever was not on the defendant's building but on the Hurley building, both owners having reciprocal rights in the passageway.

The cantilever rotated on a pintle as a fulcrum on the principle of the see-saw. The pintle was an iron rod affixed at one end to the Hurley building and supported from above on the other end. On the descending side of the cantilever was a flight of thirteen steps, which was about twelve or thirteen feet long, and on the opposite side, which was shorter, was a counterweight sufficient to keep the descending side (when swinging free and not in use) in slightly above a horizontal position, where it was checked by a chain running from the counterweight to the upper part of the fire escape. In normal operation the distance which one would have to go out on the cantilever before it started to descend would depend upon his weight. With the lightest of the plaintiffs it would start to descend before she reached the open end. The horizontal bar which one of the plaintiffs swung forward was a continuation of a rod which ran down vertically to the cantilever. On the lower end of the rod were two horizontal projections forming a fork which, when the horizontal bar was across the steps, engaged the cantilever just in front of the counterweight and prevented any movement up or down. When the horizontal bar was turned ninety degrees to the left, the fork was disengaged from the cantilever, and in normal operation permitted the gradual downward movement of the cantilever upon the application of weight.

On the date of the accident G. L. (Ter. Ed.) c. 143, Section 21, as appearing in St. 1943, c. 546, Section 2, provided: "Any building in which ten or more persons are employed in a factory . . . the owner, lessee or mortgagee in possession whereof is notified in writing by an inspector that sections fifteen to sixty, inclusive, apply thereto, shall be provided with proper egresses or other means of escape from fire sufficient for the use of all persons . . . employed . . . therein; but no owner, lessee or mortgagee in possession of such building shall be deemed to have violated this provision unless he has been notified in writing by an inspector as to what additional egresses or means of escape from fire are necessary, and for thirty days has neglected or refused to provide the same. The egresses and means of escape shall be kept unobstructed, in good repair and ready for use . . .." Section 51 of the same chapter, as amended by St. 1943, c. 544, Section 3, provided: "The owner, lessee or occupant of a . . . factory, workshop or manufacturing establishment, or whoever owns any building or part thereof mentioned in and subject to . . . [section] twenty-one . . . or controls the use thereof, shall cause the provisions thereof to be observed, and such person shall be liable to any person injured for all damages caused by a...