Sewell v. Moore

• Decision Date: 11 March 1895
• Docket Number: 129
• Citation: 166 Pa. 570,31 A. 370
• Parties: Elizabeth Sewell v. James C. Moore, Appellant
• Court: Pennsylvania Supreme Court

31 A. 370

166 Pa. 570

Elizabeth Sewell v. James C. Moore, Appellant

No. 129

Supreme Court of Pennsylvania

March 11, 1895

Argued January 22, 1895

Appeal, No. 129, July T., 1894, by defendant, from judgment of C.P. No. 3, Phila. Co., June T., 1892, No. 295, on verdict for plaintiff. Reversed.

Trespass for personal injuries. Before GORDON, J.

At the trial it appeared that plaintiff was a factory hand, working in the third floor of a mill of which the defendant was owner. On March 3, 1892, while the mill was in the possession of a tenant, a fire occurred, and the door leading to the fire escape having been locked by the direction of the tenant, plaintiff was unable to reach the fire escape, and was injured by jumping from a window. The evidence tended to show that the fire escape was a permanent, safe and external structure.

When Andrew McGill, a building inspector, was on the stand, he was asked this question: "Q. I hand you a certificate of approval of the fire escape of Mr. Moore's mill, issued February 4th, 1893; does that certificate, which was issued by the board of fire escapes of Philadelphia, approve of a fire escape in 1893 on this building, which was precisely identical with that of 1891?"

Objected to. Objection sustained and exception. [1]

When George J. McCrane, a factory inspector was on the stand, he was asked this question: "Q. Did you, as factory inspector, visit the mill of Mr. Moore? A. Yes, sir. Q. Did you make a report of it in accordance with law? A. Yes, sir.

Mr Beck: What is offered to be proven by this witness?

Mr. Sellers: By the act of May 20, 1889, P.L. 245, it is provided by section 12:

'That if the inspector of factories finds that . . . the means of egress in case of fire or other disaster is not sufficient or in accordance with all the requirements of law . . . he shall notify the proprietor of such factory . . . to make the alterations or additions necessary within sixty days.'. . .

I offer to prove that in pursuance of this duty he visited these tower fire escapes, and he considered them to be perfectly safe and proper for escape from fire.

Objected to.

The Court: The duties of the factory inspector are more comprehensive than those of the board of fire escapes. Its functions, so far as this act was concerned, were merely to inspect and test, or approve or disapprove of the fire escapes. Factory inspectors are charged with more comprehensive and different duties; among others, that of inspecting all modes of egress, not only those for escape during fire, but all others, and other duties that may be related to those of the fire commissioners, but they do not take the place of the other body, and his approval would in no sense take from the plaintiff her right of action. It is purely statutory, and I therefore refuse the offer."

Exception granted to the defendant. [2]

Mr. Sellers read section 27 of act of 1893, P.L. 373, by which it is provided:

"All buildings to be hereafter erected . . . factory or workshop, more than two stories in height, shall have at least one stairway, accessible from each apartment, which shall be inclosed with brick walls, . . . and shall have no interior openings other than the doors from which it is an exit, . . . shall be provided with a tower fire escape, inclosed in incombustible material adjoining one of its fronts. . . . Such fire escape shall be held and taken as a fire escape under the act of . . . June 30, 1885."

Now, I desire to prove that is the kind of fire escape defendant had.

Plaintiff objects. Objection sustained and exception. [3]

Richard C. Borchers was asked this question: "Q. The plan of tower fire escapes, which you adopted as a mechanical engineer -- are those the plans actually adopted in the large mills in the northeastern section of the city which have been erected during the last ten years?"

Objected to. Objection sustained and exception. [4]

Defendant's points were as follows:

"1. That if the jury believe that the fire escape for which the certificate of approval of February 14, 1893, was issued, is identical with that in the factory burned, then it affirmatively appears that the owner is relieved from the liability imposed by the act of June 3, 1885, and the verdict should be for the defendant. Answer: Refused." [5]

"2. If the jury believe that the factory inspector, in accordance with section 12 of the act of May 2, 1889 (P.L. 245), found that the means of egress in case of fire was sufficient, then the verdict must be for the defendant. Answer: Refused." [6]

"3. Defendant is not liable for the act of the tenant in locking the door, and if the jury believe this was the proximate cause of the injury, the verdict must be for the defendant. Answer: Refused." [7]

Verdict and judgment for plaintiff for $500. Defendant appealed.

Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5-7) instructions as above, quoting them.

Judgment reversed.

David W. Sellers, Leon H. Foltz and David Jay Myers with him, for appellant, cited; Act of June 11, 1879, P.L. 128; act of June 3, 1885, P.L. 65; act of May 20, 1889, P.L. 245; Pitt. Assn. v. Model Assn., 159 Pa. 308; City v. Hays, 93 Pa. 72.

James M. Beck, William F. Harrity with him, for appellee, cited: Com. v. Kitchenman, 46 Leg. Int. 270.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The learned judge directed a verdict for plaintiff leaving to the jury only the amount of damages, on the view that the statute required the construction of a fire escape in exact conformity to the method and details prescribed, or in case of any variance, the approval of the proper municipal authorities as a mandatory requirement, the absence of which would create a liability to any person injured in consequence of a fire in the building irrespective of any question of negligence or proximate cause. The statute will not bear so severe a construction.

The act of June 11, 1879, P.L. 128, required certain buildings to be provided with "a permanent safe external means of escape therefrom in case of fire," leaving the determination of the means to be adopted, to the individual owners, subject to the examination and approval of the fire commissioners or other proper officials. A supplement was passed June 1, 1883, P.L. 50, and an amendment to the supplement on June 3, 1885, P.L. 65, neither of which is material to the present case. On the same day however as this last act, June 3, 1885, P.L. 68, was passed an amendment to the act of 1879 which is the statutory law in force at the time of this accident. This act prescribes in great detail the nature and mode of construction of the external fire escape required, but also has a proviso that "nothing...