The intestate and the defendant were employee and employer. The complaint alleges that the death of the intestate was caused solely by the *Page 544 negligence of the defendant, in that the building consumed by fire, in which the intestate was burned to death, was provided with stairs and elevator as means of passing from one floor to another and there was no fire escape on the outside of it or elsewhere, or no ladder nor stairs as a means of escape to the roof, or no automatic sprinkling device nor any other to prevent and check the spread of fire, and the said defendant was negligent in not providing each of such lacking appliances. The allegations of negligence were supported by proof.
The Labor Law (Laws of 1909, ch. 36 [Cons. Laws, ch. 31]) provided at the time of the accident: "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." (Section 82.) The section also prescribes the plan and method of construction of the fire escapes, and section 83 provides for any other plan or style approved in writing by the commissioner of labor. The trial justice, having correctly held that the building was, within the sense of the statute, a factory, charged the jury that the negligence of the defendant was established as a matter of law by his failure to provide a fire escape. A question presented by the briefs and argument of counsel is, was it, as a matter of law, negligence on the part of the defendant to refrain from providing the fire escapes.
The statute creates a duty independent of any direction or approval on the part of the commissioner of labor. (Arnold v.National Starch Co., 194 N.Y. 42.) The idea of duty implies that of mandate. A statute prescribing simply a duty is not more mandatory than is the common-law creation or declaration of a duty. The statute which required signals to be given upon all moving railroad trains and engines approaching highway crossings at grade was not, or the present statute which requires a signboard at every railroad crossing of a highway at grade is not more mandatory in an action *Page 545 for negligence than the declaration of the common law that a traveler upon a highway approaching a railroad crossing must look and listen for an approaching train. The legislature may enact that the violation of a statute, and the common law may declare that the violation of a specific duty shall impose an absolute liability, but an action thereon can scarcely be said with technical accuracy to be in negligence. It is rather a statute or rule creating liability regardless of negligence. While negligence is the violation of a duty, not every violation of a duty begets negligence. It is the violation of the duty to exercise the degree of care which the particular circumstances of the case demand which begets negligence. The duty is relative, not absolute, and the effect of any particular statute, rule or expediency must, unless the legislature or the common law otherwise intend, depend upon the particular circumstances and exigencies of each case. Therefore, in this state, it has been uniformly held that in actions for negligence the violation of a statute or ordinance, merely defining or creating a duty, was evidence, but not conclusive evidence of the negligence of the violator,
In Fluker v. Ziegele Brewing Co. (201 N.Y. 40, 43) the plaintiff, injured by the falling of a beer keg or barrel upon him, charged the defendant with negligence in the manner of piling the beer kegs and also in violating an ordinance of the city of Buffalo which prohibited the use of the alley upon which the kegs were in part, for such purpose. The trial justice charged originally that the violation of the ordinance "is not sufficient to make out negligence against the defendant in this case. It is a circumstance to be taken into account in connection with the manner in which the kegs were piled in the alley and to be considered as a circumstance bearing on the question of negligence on the part of the defendant." At the request of the plaintiff, this part of the charge was withdrawn and the charge was made "that in *Page 546 piling the barrels in the street it, (the defendant), violated a duty which it owed to the public, including this boy." Judge GRAY, writing for the unanimous court, said: "In this there was grave error; for the commission of which the judgment should be reversed and a new trial should be had. * * * The violation of the ordinance did not subject the wrongdoer to the civil liability for damages; but its disregard was something, which, in connection with the other facts of the case, furnish some evidence for the consideration of the jury in passing upon the question of the liability of the defendant. That is to say: were the kegs negligently deposited and allowed unduly to remain in a public street, where persons, rightfully there, might, innocently on their part, be exposed to injury? The facts bearing upon their handling and the place where deposited, all, enter into the question; no one being conclusive, however strongly evidential it might be. The case of Knupfle v. Knickerbocker Ice Co. (84 N.Y. 488) was one, where a violation of a municipal ordinance, in leaving a horse attached to a vehicle in a street unattended, or unsecured, was charged by the trial court to be `necessarily negligence.' The action was for negligently causing death and the plaintiff's judgment was reversed by this court, upon the ground that the judge went too far in holding that the `violation of the ordinance was negligence of itself.' The rule was there stated, as the result of the decisions, that such a violation `is some evidence of negligence, but not necessarily negligence.' The authority of that case has been repeatedly recognized. The rule itself had been previously asserted in McGrath v. N.Y.C. H.R.R.R. Co. (63 N.Y. 522). (See McRickard v. Flint,114 N.Y. 222, 226, and Donnelly v. City of Rochester, 166 ib. 315-319.)" An ordinance was considered in that case, but a municipal by-law or ordinance duly enacted has the force and effect of a statute within the territory for which it is provided. (Village of Carthage v. Frederick, 122 N.Y. 268;Atlantic *Page 547 Coast Line R.R. Co. v. City of Goldsboro, 232 U.S. 548.)
In McGrath v. N.Y.C. H.R.R.R. Co. (63 N.Y. 522, 530) the defendant violated an ordinance of the city of Albany which required it to station a flagman at every street crossing. The trial justice erroneously refused to receive the ordinance in evidence. Judge EARL, writing for the court, said: "It (the ordinance) was, therefore, in the nature of a law to be observed within the city by all railroad companies. * * * A violation or disregard of the ordinance, while not conclusive evidence of negligence, is some evidence upon the question to be submitted to the jury, with all the other evidence."
In McRickard v. Flint (114 N.Y. 222, 226) the plaintiff charged the defendant with negligence in leaving uncovered in his place of business an elevator hatchway. A statute required the covering of it. Judge BRADLEY, writing for a unanimous court, said: "The failure to perform a duty imposed by statute, where, as the consequence, an injury results to another is evidence upon the question of negligence of the party chargeable with such failure. (Jetter v. N.Y. H.R.R. Co., 2 Abb. Ct. App. Dec. 458; McGrath v. N.Y.C. H.R.R.R. Co., 63 N.Y. 523; Massoth v. D. H. Canal Co., 64 N.Y. 524; Willy v. Mulledy,78 N.Y. 310; Knupfle v. Knickerbocker Ice Co., 84 N.Y. 488.) It is not conclusive evidence of negligence."
In Donnelly v. City of Rochester (166 N.Y. 315, 318) the plaintiff charged the defendant with negligence in leaving insufficiently guarded an areaway. An ordinance of the city required a guard of a height greater than that actually used. Chief Judge CULLEN, then Judge CULLEN, writing for the unanimous court, said: "This action is not brought to impose liability upon the city for failing to enforce its ordinances, but for default in its own primary duty to maintain its streets reasonably safe and secure for travelers thereon. * * * The defendant's own ordinance *Page 548 prescribed three feet and a half as the proper height for such railings. Though a violation of the ordinance is not negligenceper se, it is some evidence of negligence. (Knupfle v.Knickerbocker Ice Co., 84 N.Y. 488.)"
In Briggs v. N.Y.C. H.R.R.R. Co. (72 N.Y. 26, 30) the plaintiffs charged that through the negligence of the defendant their building was destroyed by fire which caught from sparks from the switchhouse. The stove pipe in the switchhouse was placed in a manner forbidden by the city ordinances, and the trial justice charged that that fact was evidence of negligence which the jury had a right to consider. Judge RAPALLO, writing for the unanimous court, said: "The ordinance was admissible, provided the evidence was such as to permit an inference that its violation contributed to the injury; and the charge that the jury might take it into consideration in determining the question of negligence was correct, subject to the same proviso."
In Graham v. Manhattan Ry. Co. (149 N.Y. 336, 341) this court said: "Again, the defendant's disregard of the statute which required gates upon every passenger car used upon its elevated railroad, and that they should be kept closed while the car was in motion, was also evidence of its negligence. (Knupfle v. Knickerbocker Ice Co., 84 N.Y. 488; McRickard v. Flint, 114 N.Y. 222, 226.) * * * The evidence in this case was clearly sufficient to require the submission to the jury of the question of the defendant's negligence."
In Koester v. Rochester Candy Works (194 N.Y. 92, 95) the defendant was charged with the violation of sections 70 and 81 of the Labor Law. Chief Judge CULLEN, writing for the unanimous court, said: "The Labor Law makes a violation of its provisions a misdemeanor, but does not give a civil remedy therefor to the party injured. Nevertheless it was held by this court in Marino v. Lehmaier (173 N.Y. 530, 534) that a violation of the statute was per se evidence of negligence for *Page 549 which a jury might find the defendant liable * * *. Under this doctrine the gist of civil liability is the negligence of the master in employing a person of such tender years that the legislature has forbidden his employment. Therefore, if the employer, in the exercise of proper vigilance and due caution, is led to believe that the employee is above the statutory age, he cannot well be charged with negligence in employing an infant, * * *. The question always is whether the employer is justified in believing that the employee is of sufficient age to authorize his employment. For this purpose he may not rest alone on the representation of the plaintiff, but is required to exercise proper vigilance to discover the fact. What such vigilance would dictate differs in different cases. There can readily be imagined a case where the employee is of such mature appearance that the employer may naturally and properly accept his statement as to age. In other cases the appearance of the employee might be the exact reverse. No definite rule can be laid down to relieve the employer from liability in violating the statute."
In Scott v. International Paper Co. (204 N.Y. 49, 51) the plaintiff charged the defendant with negligence in violating section 81 of the Labor Law requiring machinery of every description to be properly guarded. Judge CHASE, writing for the court, said: "Where it is practicable to guard a machine, and danger from its remaining unguarded should be reasonably anticipated, the provisions of the statute quoted are mandatory. A machine that is maintained wholly without guards is presumptively contrary to the statute. The burden of showing that it is impracticable to guard a machine, or that its location removes it from danger to employees, is upon the person or corporation maintaining it." It is worthy of notice that the learned counsel of the plaintiff relied upon the principle stated in their brief: "The failure of the defendant to guard the machinery was sufficient evidence *Page 550 of negligence to warrant the submission of the case to the jury."
In Kelley v. N.Y. State Railways (207 N.Y. 342, 345) the plaintiff, who was injured in collision with a car of the defendant, was violating a statute. This court said: "It (the statute) is evidence for the jury to consider on the question of negligence with all the other evidence in the case. The court, therefore, erred in taking the statute from the consideration of the jury."
In Barr v. Green (210 N.Y. 252, 255) the plaintiff was injured by a barbed wire fence constructed by the defendant in violation of a statute. Judge CHASE, writing for the court, said: "It is not claimed that the defendant has complied with it (the statute). Its provisions should be considered in determining whether the defendant was negligent. * * * We are of opinion that a barbed wire fence is not a nuisance as a matter of law. * * * A person may or may not be negligent in building or maintaining such a fence depending upon the place where the same is erected or maintained and the circumstances affecting the question whether such a fence would in any way constitute a source of danger."
In Macauley v. Schneider (9 App. Div. 279, 282) Chief Judge CULLEN, then Justice CULLEN, speaking for an unanimous court, of which the chief judge of this court was a member, of an ordinance violated by the defendant, said: "Nor did the ordinance of the city, directing that the water be discharged under the sidewalk, make the defendant's method of discharge unlawful per se, but it was only evidence authorizing the jury to find the method improper."
In McCambley v. Staten Island M.R.R. Co. (32 App. Div. 346,348) Justice WOODWARD, speaking for the same court of a violated ordinance, said: "Its violation is not negligence per se, as a matter of law, and conclusive evidence on the question, but it is competent evidence, and sufficient to justify the jury in finding, as a fact, that its *Page 551 violation was negligence. The charge of the court, that the violation of the ordinance was insufficient for the jury to find negligence, was, therefore, error. Its violation should have been submitted to them as a fact."
In Sitts v. Waiontha Knitting Co. (94 App. Div. 38, 44) Judge HISCOCK, then Justice HISCOCK, said "a violation of the statute would furnish sufficient evidence from which a jury could say that defendant was negligent."
The principle that the violation of a statute does not establish conclusively negligence on the part of the violator is applicable also to a plaintiff charged with contributory negligence. (Hoffman v. Union Ferry Co. of Brooklyn, 47 N.Y. 176;Lambert v. Staten Island R.R. Co., 70 N.Y. 104;Blanchard v. N.J. Steamboat Co., 59 N.Y. 292; Carroll v.Staten Island R.R. Co., 58 N.Y. 126; Connolly v.Knickerbocker Ice Co., 114 N.Y. 104; Kelley v. N.Y. StateRailways, 207 N.Y. 342. See, also, Parsons v. Syracuse, B. N YR.R. Co., 205 N.Y. 226.) We have not in any decision disregarded or violated the principle established and applied by the decisions cited and the others not cited. Willy v.Mulledy (78 N.Y. 310, 314) was brought and sustained upon the rule that "where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." (City ofRochester v. Campbell, 123 N.Y. 405, 413; Pauley v. SteamG. L. Co., 131 N.Y. 90, 96.) This court and other courts of the state have deemed the decision therein consistent with the principle that the violation of a statute is not conclusive evidence of negligence. (McRickard v. Flint, 114 N.Y. 222,226; Marino v. Lehmaier, 173 N.Y. 530, 535, 540; Ziegler v.Brennan, 75 App. Div. 584.) In Arnold v. National StarchCo. (194 N.Y. 42, 48) the principle was not under consideration and the conclusion there reached, as stated by Judge HISCOCK, "These views lead to the conclusion that the appellant *Page 552 furnished evidence upon which she was entitled to go to the jury and that it was error to dismiss her complaint," is consistent with it. In Racine v. Morris (201 N.Y. 240) the liability of the defendant, predicated upon the violation of the section of the Building Code, was submitted to the jury. The Appellate Division expressed therein the principle above stated. (Racine v. Morris, 136 App. Div. 467, 474.) In what may be termed the scaffold cases, based upon sections 18 and 19 of the Labor Law, there has existed a doubt, which this court has not had occasion to remove, as to whether or not the statute made the liability of the employer absolute. (Stewart v. Ferguson, 164 N.Y. 553;Caddy v. Interborough R.T. Co., 195 N.Y. 415; Gombert v.McKay, 201 N.Y. 27; Smith v. Variety Iron S. Works Co.,208 N.Y. 543; Smith v. Variety Iron S. Works Co., 147 App. Div. 242;Grady v. National Conduit C. Co., 153 App. Div. 401. )
The principle has recognition in other jurisdictions. (GrandTrunk Railway Co. v. Ives, 144 U.S. 408, 418; Finnegan v.Winslow Skate Mfg. Co., 189 Mass. 580; Gately v. Taylor,211 Mass. 60; Ubelman v. Am. Ice Co., 209 Penn. St. 398;Fane v. Phil. R.T. Co., 228 Penn. St. 471; Channon Co. v.Hahn, 189 Ill. 28; True True Co. v. Woda, 201 Ill. 315.)
It would be supererogation to vindicate at this time our adoption of the principle. It has existed through more than half a century and the legislature has not deemed it wise or beneficent to annul or modify it — a convincing proof that we have correctly applied the enactments. It therefore is not necessary, and I think it unwise, to substitute confusion and uncertainty for clarity and certainty. In determining whether or not the defendant was negligent the jury should have been permitted and required to consider, in connection with the statute and its violation, the construction of the shed, the means of egress, the manner of its use and occupation and all the facts tending to show that danger from its remaining without a fire escape *Page 553 should or should not have been reasonably apprehended or that defendant failed or did not fail to use the care which the circumstances of the case demanded.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HOGAN, CARDOZO and SEABURY, JJ., concur with CUDDEBACK, J.; COLLIN, J., reads dissenting opinion; HISCOCK, J., dissents on ground that it does not appear that intestate's death was caused by lack of fire escapes.
Judgment affirmed.