188 P. 638 | Utah | 1920
In January, 1918, the defendants owned an apartment house in Salt Lake City, Utah. The plaintiff, her husband, and one child were then tenants of defendants, occupying an apartment on the fourth floor of said building. The building
A witness for the plaintiff was permitted to testify respecting the condition of the building after the fire — that is, to detail the part burned or damaged by the fire — and also the condition of one or two other apartments located on the first floor. The origin or location of the fire was a question in issue, and this testimony was admitted, and was competent, as tending to locate the place where the fire originated. It was the contention of the plaintiff and one of the alleged grounds of negligence that the fire was caused by the pipe being maintained in such close proximity to the wooden floor immediately above the pipe that this floor became ignited and the fire resulted. The testimony of the janitor, an employé of the defendants, was that the pipe was within twelve or fourteen inches of the floor; that prior to the date of the fire he had spoken to one of the defendants about the size of
Tbe court refused to permit tbe defendants to testify that they, or either of them, bad no knowledge of tbe existence of tbe ordinance requiring buildings such as tbe one in question to be equipped with fire escapes, and to tbe further fact that they had never been notified by any officer of Salt Lake City that they were required to construct fire escapes upon the building. It is admitted that the ordinance was in effect at that time and bad been for some time previous.
There was no error committed in either tbe admission or in tbe exclusion of testimony.
The ordinance was introduced in evidence. In fact, it was set out in tbe plaintiff’s complaint. Among other things, it provides that—
“Every building of three or more stories in height, and every building used or occupied as a theater, hospital, tenement house, apartment house — above the second story — shall be provided and equippe^ with metallic fire escapes combined with suitable balconies * * * firmly secured to the outer walls.”
The ordinance also provides that such buildings “that are already erected and built, or that may be hereafter erected and built in this city, shall be provided and equipped with fire escapes.”
It is admitted that tbe defendants had not constructed or maintained on the building, or equipped it with, any fire escapes at tbe date of the accident. It also appears that there was no other means of ingress to or egress from plaintiff’s particular apartment save through the front hallway. On the morning of the accident, the fire had rendered it impossible for any one on the fourth floor to leave the building
There is testimony in the record to support plaintiff’s contentions on each ground of negligence alleged.
The court instructed the jury that if they found that the defendants violated the ordinance in question by failing to provide fire escapes and that such violation, by 3 itself or in connection with other acts of negligence on the part of the defendants, was the proximate cause of the injury complained of by the plaintiff, then, in case the jury found that such injury was not contributed to by her own negligence, she was entitled to recover. The principle announced in that instruction is supported by the highest authority. Hayes v. Michigan Cent. R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Briggs v. New York Cent. & H. R. R. Co., 72 N. Y. 26; Rose v. King, supra.
It appears that the plaintiff, on awakening in the morning and on ascertaining that the building was on fire, opened the door of her apartment leading into the main hallway and found the hallway full of smoke. Thereupon she rushed to the rear end of the building in an effort to escape by way of the back stairs. Being unable to gain access to those stairs, she came back, turned into her own apartment, and just as she was entering, became overcome by the heat and as a result suffered the injuries complained of. The defendants contend that by reason of these acts on the part of plaintiff it was affirmatively shown that her own negligence contributed to and was the immediate cause of the injury. The court, in its fifth instruction, .told the jury that where one is placed by the negligent act of another in such position that he is compelled to choose upon the instant and in the face of great
“The rule is well established that, when one is required to act suddenly and in the face of imminent danger, he is not required to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties. And this is especially true where the peril has been caused by the fault of another. He .will not be held guilty of contributory negligence merely because he failed to exercise the care a prudent person would have exercised, or because he fails to exercise the best judgment, or takes every precaution which he might have taken which from a careful review of the circumstances it appears he might have taken. But if he in good faith acts as a person of ordinary prudence might under the circumstances, he will not be guilty of contributory negligence even by doing an act which is dangerous and from which injury results in attempting to escape danger.”
See, also, Penn. R. R. Co. v. Werner, 89 Pa. 59; Vallo v. U. S. Express Co., 147 Pa. 404, 23 Atl. 594, 14 L. R. A. 743, 30 Am. St. Rep. 741; 20 R. C. L. 29.
The court submitted the question of the plaintiff’s contributory negligence to the jury under proper instructions, and the jury resolved that issue against the contention
Other errors are assigned and discussed in the brief of appellants. The matters complained of were in no way prejudicial. There being no reversible error in the record, the judgment is affirmed. Appellants to pay costs.
