Kelly v. Smith (29 A.D. 346, 1898)

Ingraham, J.:

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 first balcony. It seems that boys in the neighborhood were in the habit of going in this yard, and sometimes would unhook the ladder from the second balcony and hang it upon the first balcony where they would use it in their play; that upon the morning of the day of the accident this ladder had been taken from the place where it was usually kept and hung upon the first balcony, so that the bottom of the ladder was either upon the ground or close to it. The deceased, about seven years of age, was with his brother in the yard and commenced to use this ladder “ playing fireman.” The deceased climbed up to the top of the ladder when his brother started to climb up after him, the ladder shook and deceased fell, sustaining injuries which resulted in his death. At the time he fell one hook of the ladder appears to have been detached from the fire escape, the ladder being held by the other hook. These boys had been playing upon this ladder for some time during the morning. One of the inmates of the house told the boys to get off the fire escape, but, notwithstanding that, they continued to play upon it. When the boys first commenced to play upon the ladder both hooks were on the fire escape, but in some way, just before the accident, one of the hooks had become detached. There is no evidence as to when this ladder was taken down from the second fire escape and placed upon the first so that it reached the ground. The janitor, a witness called by the plaintiff, testified that two days before the accident he hung the ladder upon the second fire escape and that after that he did not notice the ladder until after the accident. There is not a particle of evidence to show that these defendants did anything except what the statute required them to do, i.