Landgraf v. Kuh , 188 Ill. 484 ( 1900 )

Mr. Justice Magruder

delivered the opinion of the court:

Upon the trial of this case, and at the conclusion of the testimony of the plaintiff below, the court instructed the jury to find the defendants not guilty, and a verdict of not guilty was found in obedience to such instruction. It is well settled in this State, that an instruction to the jury to find a verdict for the defendant should be refused, where there is evidence tending to show the plaintiff’s right to recover. If there is evidence, tending to show the plaintiff’s right to recover, there must be a submission of the case to the jury. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Baddeley, 150 Ill. 328). “If there is evidence, which fairly tends to support the plaintiff’s case, it must be submitted to the jury.” (Pullman Palace Car Co. v. Laack, 143 Ill. 242). The question, presented for our consideration, then, is not whether the evidence in this case was sufficient to support a verdict by the jury in favor of the plaintiff, but whether there was evidence tending to establish a cause of action.

First — It is claimed by the appellees that, under the statute quoted in the statement preceding this opinion, the owners of the building are not liable but only the tenants or occupants of the premises destroyed by the fire. In the case at bar, the appellees were the owners of the building, but A. Stein & Co. were tenants of a part of the fourth floor of the building under the appellees; and it is said, that, inasmuch as A. Stein & Co. controlled the possession of that part of the fourth floor where the deceased, Kittie Landgraf, was working at the time of the fire, the liability, if any exists, is the liability of A. Stein & Co., and not of the appellees.

Cases may be found, decided in other States, where it has been held that the word, “owner,” as used in statutes of this kind, means the person in possession of the premises destroyed by fire with the power of controlling the same. These cases place the responsibility upon the person in possession and occupancy of the property, and treat him as the owner for the time being, on the ground that the nature of his business renders the erection of fire-escapes necessary to protect the lives of his employees. In other words, the word, “owner,” is there held to be the owner of the business conducted in the building, and not the owner of the building itself. (Schott v. Harvey, 105 Pa. St. 222; Keeley v. O’Connor, 106 id. 321; Lee v. Smith, 42 Ohio St. 458).

The construction thus contended for may have been proper, as applied to the statutes under consideration where such construction was adopted, but cannot be held to be the proper construction of the Illinois act of 1885. Section 2 of the latter act provides that “all buildings of the number of stories and used for the purposes set forth in section 1 of this act, which shall be hereafter erected in.this State, shall, upon or before their completion, each be provided with fire-escapes of the kind and number, and in the manner set forth in said section 1 of this act.” The fact, that the buildings are to be provided with fire-escapes “upon or before their completion,” indicates that the duty of providing" such fire-escapes devolves upon the owners of the buildings. The fire-escapes are required to be a part of the construction of the building itself. Moreover, the notice, commanding" such fire-escapes to be placed upon the building, is required by section 3 to be given to “the owners, trustees, lessee, or occupant, or either of them.” The injunction being in the alternative, the notice may be given to the one, as well as to the other, and, therefore, to the owner, as well as to the lessee or occupant. We are, therefore, of the opinion, that the appellees were not relieved from liability in regard to the placing of fire-escapes upon their building, because the fourth floor of the premises, where appellant’s intestate was at work at the time of her death, was in the possession and under the control of tenants of appellees, instead of being directly in the possession of appellees themselves.

Second — The counts of the declaration, which are based upon the statute above referred to, allege that the building, or the portion thereof in the possession .of A. Stein & Co., the tenants of appellees, was “used for manufacturing purposes.” It is denied by the appellees, that any of the tenants of the building were engaged in the manufacturing business; and it is urged that, upon this ground, no liability attached to appellees.

We are inclined to agree with appellees, that the duty of providing fire-escapes did not exist at common law, but has its origin and measure in the statute, requiring" that such fire-escapes be placed upon buildings. The statute imposes a duty unknown to the common law. (Pauley v. Steam Gauge and Lantern Co. 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Schott v. Harvey, supra). But we are not inclined to agree with counsel for appellees, that there was no evidence in the present case, tending to show that the employees of A. Stein & Co. were engaged in the manufacturing business.

The word, “manufacture,” has been defined as “the process of making anything by art or of reducing materials into form fit for use by hand or by machinery.” (14 Am. & Eng. Ency. of Law, — 1st ed. — pp. 257-259). While the original meaning of the word “manufacture” is to make with the hand, the definition of the term is not confined to this original signification. Manufacturing 'generally “consists in giving new combinations to matter which has already gone through some other artificial process.” (Norris Bros. v. Commonwealth, 27 Pa. St. 494). “When great quantities of salable articles are produced, even by a single operation of a. very simple machine, we frequently, if not ordinarily, speak of the operation as a manufacture. * * * And when any article of manufacture, having a distinct name in the trade and commerce of the country, is produced by machinery, "x" "x" * from any material or materials having a different commercial name from the article produced, we may generally speak of the operation by which it is produced as a manufacture.” (Schricfer v. Wood, 5 Blatchf. 216). Bouvier in his Law Dictionary, in defining the word “manufacture,” says: “It includes any new combination of old materials constituting a new result or production in the form of a vendible article, not being machinery.” (Murphy v. Aronson, 96 U. S. 134; City of New Orleans v. LeBlanc, 34 La. Ann. 597). “Now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions or new and specific combinations, whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the employment of machinery, * * * are now commonly designated as ‘manufactured.’” (Catlin v. West Assurance Co. 57 Md. 526).

The evidence in this case tends to show, that the portion of the fourth floor of the building of appellees, which was occupied by A. Stein & Co., was used by them for the manufacture of garters and hose-supporters; and that, in this business they operated at least eighteen machines, which were driven by electric power; and that this electric power was furnished by the appellees from another building across the street from the building in question, and on the south-west corner of Franklin and VanBuren-streets, which latter building was owned by a corporation known as the Kuh, Nathan & Fischer Company, appellees being the stockholders therein. The testimony also shows, that there were several other tenants in the building, who were engaged in making children’s clothes, vests, and elastic and metal goods, and dummies. A. Stein & Co. made garters, hose-supporters and belts, and, in connection with these, made use of certain metal goods known as garter buckles, cuff-holders and armlets. In view of this testimony, we are not prepared to say that there was not evidence, tending to show the carrying on of a manufacturing business in the building. It is true, as is contended by counsel for appellees, that the signification of the word “manufacture” was a matter to be decided by the court, but, after the definition is given by the court, then the question, whether the present building was used for manufacturing purposes or not, was a question for the jury. (Catlin v. West Assurance Co. supra).

Third — It clearly appears from the evidence, that there were only two fire-escapes attached to this building, if it was one building, instead of two buildings. One of these fire-escapes was upon that portion of the building, which fronted east upon Franklin street; the other fire-escape was upon the west side of the building, fronting upon the alley, and being situated upon the west wall of the building some distance back from the portion of the building, which fronted upon VanBuren street. There was no fire escape upon the VanBuren street front of the building. The statute provides “that all buildings more than two stories in height, used for manufacturing purposes ■■ * * shall have at least one such fire-escape for every fifty persons, for which working * * "x" accommodations are provided above the second stories of said buildings.” Appellant’s intestate was at work in the front part of the fourth floor of the building, and in the VanBuren street ell of the building. It is claimed on the part of appellees, that there were not one hundred and fifty persons at work in the building above the second story, and that, therefore, appellees were not required to put more than two fire-escapes upon the building. If there were one hundred and fifty persons at work in the building used for manufacturing purposes above the second story thereof, then, under the statutory requirements, there should have been one fire-escape for each of such fifty persons, or three fire-escapes, whereas it is not claimed that there were more than two. Whether or not there were one hundred and fifty persons in the-building above the second story, so occupied as above stated, was a question of fact to be determined by the jury. As we read the evidence, there was testimony tending to show that there were one hundred and fifty persons employed in this building above the second story. At least two witnesses stated, that there were one hundred and fifty persons so employed. Their testimony may have been weakened by cross-examination, or may have been contradicted by other evidence, but the question here is not as to the weight of the evidence, but the question is as to what the evidence tends to prove. As there was evidence tending to prove the employment of one hundred and fifty persons above the second story, we are of the opinion that the court erred in not leaving it to the jury to determine that matter.

There was some testimony, tending to show that the window, which communicated with the platform of the fire-escape on the west side of the fourth floor of the building, had iron shutters, and that one of these shutters was kept closed during the day by A. Stein & Co. There was also evidence, tending to show that the access to the fire-escape from the room, occupied by A. Stein & Co., was in a certain way obstructed by the presence of some shelves, or a-desk, near or against the window. Of course, if access to the fire-escape was prevented by the act of A. Stein & Co., the appellees were not responsible. But it was a question of fact to be determined by the jury, whether such obstructions prevented the use of the fire-escape or not. Whether appellant’s intestate could have escaped by way of the fire-escape, which was upon the west side or alley side of the room, was a matter for the determination of the jury. It was for the jury to say, whether, upon the whole case, appellant’s intestate could have escaped, or would hhve escaped, if the number of employees engaged above the second floor was sufficient to require the placing upon the building of another fire-escape, and if such third fire-escape had been placed upon the building. (Willy v. Mulledy, 78 N. Y. 310). In Schwandner v. Birge, 46 Hun, 68, it was said by the court: “The question, whether the means of egress were reasonably sufficient, and all that due care required of the defendant to provide for his employees, was for the jury; that was one of the vital questions to be determined by them.”

There was also evidence, tending to show that the elevator and stairway in the hall of the VanBuren street portion of the building were, by reason of the fire and smoke, in such a condition, that the employees of A. Stein & Co. could not escape by their use. There was also evidence tending to show that some of these employees, including appellant’s deceased, were-forced by the fire and smoke forward on the fourth floor to the VanBuren street front, in order to get air through the bay window: on that front, and to prevent suffocation. Some of the witnesses say, that the faces of some of the girls at that window were burned, and that their hair was singed by the fire. Whether or not the obstructions, alleged to have- been placed in front of the window communicating with the fire-escape, or the pressure of the flames and the smoke, prevented the use of the fire-escape on the alley side of the building by the employees was exclusively a matter for the jury to decide.

Fourth — It is claimed by the appellees that this young girl, who was only a little over seventeen years of age when she lost her life, knew of the existence of the fire-escape, and was herself guilty of negligence in not making use of it. There is some testimony, tending to show that some of these employees had no knowledge of the existence of this fire-escape upon the alley side of the building. Whether or not the deceased knew of it is a matter about which the evidence is silent, but the question whether she had knowledge of it or not was also, like the other questions above mentioned, a matter for the decision of the jury.

Undoubtedly, the general rulé is that, if a servant accepts service with knowledge of the character and position of structures from which employees might be liable to receive injuries, he cannot hold the master liable in case of injury. But the doctrine in regard to the assumption of risk by an employee applies only to the natural and ordinary risks, incident to the work in which the servant is engaged. It cannot be said, however, that, if the danger, from whicji the injury to appellant’s intestate resulted, was the absence of the necessary number of fire-escapes, the absence of such fire-escapes was a natural and ordinary risk, incident to the work in which she was engaged. At any rate it was, under the circumstances, a question of fact to be decided by the jury, whether the deceased took the risk of the danger referred to or not, In Huda v. American Glucose Co. 154 N. Y. 474, it was said: “Of course it is not to be understood, from what has been said, that it necessarily follows, that employees would assume such risks, connected with the management of the business, as would result from a violation by the employer of the statute in a neglect to provide fire-escapes.” (See also Schwandner v. Birge, 33 Hun, 186; 1 Shearman & Redfield on the Law of Negligence, sec. 217; 2 id. sec. 702a).

Fifth — It is further claimed on the part of appellees, that the absence of a fire-escape, if it was a cause of the injury which resulted in the death of the appellant’s deceased, was only the remote, and not the proximate cause of such injury. It is said, that appellant cannot fasten any liability upon the appellees, unless she not only shows the omission by appellees of a duty, but unless she also shows that such omission of duty was the direct and proximate cause of the accident complained of. It is often difficult to determine whether the cause of an injury is'the remote or the proximate cause thereof. Where, in the absence of a fire-escape, a person in a burning building is destroyed by the flames, it is unquestionably true that the fire is the proximate cause of the death, but yet it cannot be said that the absence of the fire-escape is not, in the view of the law, a proximate cause, if the presence of such fire-escape would have prevented the death. So, if a person in a burning building, where there is no fire-escape or none accessible, is forced to seek escape from the building by descent from a ladder or otherwise, it may be a question whether the defective condition o[ the ladder, or its unskillful use, is, in such a case, so far the proximate cause of the accident, as to make the absence of the fire-escape merely a remote cause. Certainly, the effort to escape in some other mode than by a fire-escape might be directly caused by the absence of such fire-escape. But we do not wish to be understood as expressing any opinion upon the question, whether the obstruction of the double window communieating with the fire-escape, or an accident in connection with the use of the fireman’s ladder, was the proximate cause of the death of appellant’s intestate, or not. What we decide is, that the question, what is the proximate cause of an injury, is ordinarily a question to be determined by the jury under the instructions of the court. In Fent v. Toledo, Peoria and Warsaw Railway Co. 59 Ill. 349, we said (p. 362): “We understand * * * the position of counsel for appellee to be that, if fire is communicated from a locomotive to the house of A, and thence to the house of B, it is a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate, cause, of the injury to B; and the railway company is, for this reason alone, to be held not responsible. This rule we repudiate as in the teeth of almost numberless decisions, and as unsupported by that reason which is the life of the law. We hold, on the contrary, * * * that it is in each case a question of fact, to be determined by the jury under the instructions of the court. * * * If the fire is the consequence of the carelessness of the railway company, and the question of remote or proximate cause is raised, the jury should be instructed that, so far as the case turns upon that issue, the company is to be held responsible, if the loss is a natural consequence of its alleged carelessness which might have been foreseen by any reasonable person, but is not to be held responsible for injuries which could not have been foreseen or expected as the results of its negligence or misconduct.” In Milwaukee, etc. Railway Co. v. Kellogg, 94 U. S. 474, it was said: “The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.” (Ford v. Illinois Refrigerating Co. 40 Ill. App. 222).

For the reasons above- stated, we are of the opinion that the court erred in taking the case from the jury, and in instructing- them to find the defendant not guilty. Accordingly, the judgments of the Appellate Court and of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.