Opinion
December 2, 1940.
Appeal from Supreme Court of Kings County, JOHNSON, J.
Francis Van Orman [ A.T. Antinozzi with him on the brief], for the appellants.
Arthur Hutter, for the respondents.
Action by a seventeen-year old infant plaintiff for damages for personal injuries due to the claimed fall of a ladder on a fire escape and by his father for loss of services.
Defendant Mary Herman was not responsible for the claimed injuries because in reference to the property she was an agent whose duty was to refrain from active negligence. There is no proof of such negligence. ( Greco v. Levy, 257 App. Div. 209; affd., 282 N.Y. 575.) Fire escapes are intended to be used as emergency exits and for no other purpose. ( McAlpin v. Powell, 70 N.Y. 126; Vega v. Lange, 248 App. Div. 521.) The infant plaintiff, when he used the fire escape with permission of defendant Herman, was a bare licensee. ( Vega v. Lange, supra.) The measure of duty thus owing was that of refraining from any act of active negligence. There is no proof of that character. The ladder did not suddenly descend until after the plaintiff had climbed at least four rungs. The disengaging of the hook and the fall of the ladder must have been due to some act of the infant plaintiff since his proof establishes that the ladder could not descend unless the hook was disengaged. The undisputed proof is that the hook did not break and nothing about the mechanism broke and that on tests it worked properly and normally even after the accident.
The judgment should be reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs.
LAZANSKY, P.J., HAGARTY, CARSWELL, ADEL and CLOSE, JJ., concur.
Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs.