Willy . Mulledy. 591, 8; L. 1873, p. 1354, c. 863, § 36). A tenant takes premises at his own risk in the condition they are at the time of hiring, unless there is some false representation or fraudulent concealment (Jaffe v. Hartea, 56 N. Y. 398; O'Brien v. Capwell, 59 Barb. 497; Cleves v. Willoughby, 7 Hill, 86; McGlashan v. Tallmadge, 37 Barb. 313). It is essential to a recovery for an omission to perform some legal duty, to establish that the defendant owed at that time some specific clear legal duty to the plaintiff or the party injured (Nicholson v. Erie R. R., 41 N. Y. 529). REYNOLDS, J.-The defendant's tenement house, at the time of the fire by which plaintiff's intestate lost her life, was occupied by five families, one on the first floor, and two on each of the two stories above. It therefore came within the provisions of the act of 1873 (see Laws of 1873, c. 863, p. 1354, § 36). By that act it was made the duty of the owner to provide the building with such fire-escapes as should be directed and approved by the fire commissioners. By section 36 of the same chapter, it was also made his duty to provide a scuttle of proper size in the roof, and to have a ladder or stairway leading to the same; such scuttle and stairway, or ladder, to be kept in readiness for use at all times. No fire-escape had ever been provided, and there had been no stairway or ladder leading to the scuttle for several years previous to the fire. This statute was intended, among other things, for the protection and safety of occupants in case of fire, and under it the landlord owes to such occupants the duty of providing the means of escape thus required by law. If they sustain injury through his omission to discharge such duty, it seems to us clear, upon principle, that he should be held liable. We concur in the reasoning of Judge McCUE, in Willy . Mulledy. the case of McAlpin v. Powell, so far as the same is applicable to this case. The court of appeals decided that the defendant in that case was not liable, for the reason that the deceased was upon the fire-escape (which was defective) when there was no fire, and therefore, upon an improper occasion. But the court says. "It (the fire-escape) is an attachment to a certain class of tenant houses which are enumerated in the statute, which is erected especially for the protection. of the occupants, and a duty is imposed upon the landlord and owner having in view that object" (70 N. Y. 126). The plaintiff's intestate, in the case before us, was smothered by the smoke from a fire in the lower part of the house where she lived, and we think there was evidence upon which the jury would have been justified in finding that she failed to escape, because the defendant had not provided the means required by the statute. This question should have been submitted to them. The statute requires such fire-escapes to be provided "as should be directed and approved by the commissioners." It appears that the board had, by a general order, directed how all fire-escapes on tenement houses and other buildings, as required by the law in question, should be constructed and put up. We think this was a sufficient direction under the statute, but if not, it would probably have been the duty of the defendant to seek the direction and approval of the commissioners, in the discharge of his obligation to his tenants. For these reasons, a new trial should be granted, costs of appeal to the appellant to abide the event. NEILSON, Ch. J., concurred. Casey v. N. Y. Central, &c. R. R. Co. CASEY v. N. Y. CENTRAL & H. R. R. R. CO. N. Y. Common Pleas, General Term; February, 1879. NEGLIGENCE.-CONTRIBUTORY NEGLIGENCE OF CHILD.-NONSUIT.— In an action for damages for negligence, where the evidence does not A witness who saw a locomotive engine run over a person, may be asked whether any whistle was blown. Although the company may have usually had a flagman at a crossing, the absence of one will not excuse a person crossing the track from looking to see whether a train is approaching. The jury are entitled to know everything descriptive of the particular locality where an accident has occurred, and questions pertinent to that end should be allowed. A child should be held only to the exercise of the caution and discretion of which children of his age are presumed to be capable, and not to that which is exacted from an adult.† Signal by bell or whistle must be given by the engine on approaching a crossing. *See note at end of case. NOTE ON NEGLIGENCE OF CHILDREN, &c. The opinion of Chief Justice DALY, in the text, must be deemed to settle the question in this State in favor of the rule laid down by him Casey v. N. Y. Central, &c. R. R. Co. Appeal by defendants from a judgment and from an order denying a motion for a new trial. in the Honegsberger case, and to supersede the decision of the court of appeals, in that case, so far as in conflict. The following recent cases illustrate the views which have been taken here and elsewhere on this point, and the kindred questions of the negligence of parents and custodians, and also of intoxicated persons, and the aged and disabled. I. Contributory Negligence of Children. A child under two years of age fell on a railroad track, and while there was injured by the negligence of the railroad's employees. Held, that the child was too young to be guilty of contributory negligence. (1876, Opinion by MONCURE, P.) Norfolk & Petersburg R. R. v. Ormsby, 27 Gratt. (Va.) 455. A child under two years of age was run over by a freight train and died from the injuries. The defendant was negligent. Held, that the rule that contributory negligence is a bar to recovery, presupposes an age of discretion, and cannot apply to an infant under two years of age. When an adult is in danger of injuring a child, he is required to exercise all the care and caution at his command. (1875, Opinion by DAY, J.) Walters v. C. R. I. & P. R. Co., 41 Iowa, 71. A child about two years of age slipped out of the house unobserved by its mother, who was busy about her work, and having gone upon a railroad track near by, was run over by an engine and killed. Held, that a child of such tender years was clearly non sui juris, and his conduct therefore presented no bar to a recovery. (1874, Mem. of opinion by FOLGER, J.) Prendegast v. N. Y. Central & H. R. R. R. Co., 58 N. Y. 652. A child, a little over two years of age, allowed to be in the street, ran in the way of a passing car, and was injured by the negligence of the car driver. Held, that if the injury arose from the negligence of defendant, and not from want of the exercise of such care and discretion as could reasonably be expected from a child two years of age, so far as its own acts are concerned, it could recover. (1875, Opinion by GRASON, J.) Baltimore, &c. Ry. Co. v. McDonnell, 43 Md. 534. A child, two and a half years of age, was allowed by his parents to go at large in the public streets of the city without an attendant, he stating that he was going to his grandmother's, who lived near, to which place he was in the habit of going. A few hours later he was run over by an engine and tender and injured. The engineer blew the whistle, first, when about eight hundred feet and again when about A Casey v. N. Y. Central, &c. R. R. Co. The action was brought by John Casey, administrator of his daughter, Mary Jane Casey, against The New York Central and Hudson River Railroad Com one hundred feet from the child, but no attention was paid to it. Evidence tended to show that with ordinary care the engine might have been stopped before reaching the child. Held, that adults may be reasonably expected to take notice of signals and warnings, and remove themselves from danger, but in the case of a small child, such reliance upon signals and warnings could not be reasonably indulged, and it was the duty of the engineer to act with a greater degree of care and circumspection than in the case of an adult, and that the question of the contributory negligence of the child was for the jury. (1875, Opinion by GILBERT, J.) Kenyon v. New York Central & Hudson River R. R. Co., 5 Hun, 479. A child about two years and eight months of age was sent by its mother, under the protection of a sister about eight years of age, to a lot across the street to play and get fresh air; but, after being there for a time, the child, unobserved by its elder sister, escaped, and undertook to make its way home across the street, and while crossing it was run over and killed by a horse car, through the carelessness of the driver. Held, that so young a child could not be expected to have knowledge or foresight, and all that was necessary to give a right of action in the case was that the child should have exercised care and prudence equal to its capacity, and that the parents were not negligent. That the young and the old, the lame and infirm, are entitled to the use of the streets, and more care must be exercised towards them by persons controlling or managing cars and vehicles, than towards those who have better powers of motion. (1869, Opinion by WAGNER, J.) O'Flaherty v. Union Rw. Co., 45 Mo. 70. A child three years and two months old was sent by his mother, in charge of his sister, nine and a half years old, on an errand to a drug store, which necessitated his crossing a street railroad track; in doing this he fell, was run over by a car, and killed. The driver was not looking, and both the front and rear wheels passed over the child before the car was stopped. Held, that negligence upon the part of so young a child, when there was no negligence upon the part of the parents or the attendant, would not absolve the railroad company from liability. (1872, Opinion by RAPALLO, J.) Ihl v. Forty-second street, &c. R. R. Co., 45 N. Y. 317. A child aged three or four years, attended by a brother one or two years older, in crossing a street was injured by a passing street car. The general rule that contributory negligence bars recovery was ad |