Birmingham Ry., Light & Power Co. v. Milbrat

• Decision Date: 20 December 1917
• Docket Number: 6 Div. 461
• Citation: 201 Ala. 368,78 So. 224
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MILBRAT.
• Court: Alabama Supreme Court

78 So. 224

201 Ala. 368

BIRMINGHAM RY., LIGHT & POWER CO. v. MILBRAT.

6 Div. 461

Supreme Court of Alabama

December 20, 1917

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Alphonse Milbrat, pro ami, against the Birmingham Railway Light & Power Company. From judgment for plaintiff, defendant appeals. Reversed and cause remanded.

Somerville and Gardner, JJ., dissenting in part.

Plaintiff was injured by jumping from a window of the fourth floor of a burning building, leased and occupied by defendant company in the city of Birmingham as its place of business. Plaintiff was employed by defendant, and engaged in the performance of his duties at the time. Count 1 of the complaint is as follows:

Plaintiff, a minor, who sues by his next friend, claims of defendant *** the sum of *** as damages for this: That heretofore, on, to wit, the 19th day of May, 1914, defendant was engaged in the business in the city of Birmingham of operating a large and extensive electric street railway system, of manufacturing and selling electric current and gas, of selling gas and electric cook stoves and ranges, *** and in connection with said business used and occupied a large four-story brick building and basement, located on the corner of First avenue and Twenty-First street in said city said building fronting on First avenue and extending back a uniform width to an alley. Defendant was a lessee of said building on said date, and was the owner and proprietor of the store, and of the business conducted therein. That the grade floor of said building was used mainly as a floor for the display and sale to the public of the said goods, wares and merchandise, and gas and electric current hereinabove described. That the second, third, and fourth floors of said building were partitioned into offices, and were occupied by the superintendents, bookkeepers, etc., and other employés of defendant. That on said date plaintiff was an employé of defendant, and was engaged in and about the duties of his said employment on the fourth floor of said building. That it then and there became and was the duty of defendant to have securely fixed and conveniently arranged good and sufficient fire escapes or ladders for said building so as to be accessible to plaintiff in case of fire in said building. That on said date, in the daytime, a fire occurred in said building by which said building was burned and totally destroyed. That at the time of said fire plaintiff was on the fifth floor of said building, and, in order to save and escape with his life, was compelled to jump from a window on the fourth floor in the rear of said building to the rock paved alley below, and received the following injuries: [Here follows catalogue.] Plaintiff avers that defendant negligently failed to provide and equip said building with good and sufficient fire escapes, as it was its duty to do, and as a proximate consequence of which plaintiff received and suffered the injuries and damages herein set out.

Count 2 charges that by reason of said fire plaintiff was burned and caused to jump from said building, and "that defendant negligently failed to furnish him with a reasonably safe place in which to do and perform the work for defendant which he was employed to do."

The fourth count charges that plaintiff's injuries were caused by reason and as a proximate consequence of the negligence of the person in the service or employment of defendant who had superintendence intrusted to him by defendant, while in the exercise of such superintendence by said person, whose name is unknown to defendant, knowing that employés of defendant were, or would likely be, in said upper fourth story of said building engaged in or about working for defendant, negligently failed to furnish or provide proper and sufficient means of escape from said upper floor for the use of said employés upon said upper floor, in the event they should be endangered on account of fire.

Count 5 charges:

"That said building was an office building, and defendant had been in possession of and using said building for more than six months *** and wrongfully failed to provide good and sufficient fire escapes," etc.

Count 6 charges the breach of an ordinance of the city of Birmingham in words as follows:

"Sec. 258. Fire Escapes. All buildings, more than two stories high in any part, or in whole, now or hereafter used in any part, or in whole, as a public or private building, public or private institution, sanatorium, surgical institute, asylum, schoolhouse, theater, hall, office, dormitory, place of assemblage, or public resort, store or store building, mills or manufacturing building, and all buildings used as a factory, mercantile or other establishment, and every public or private hotel, apartment, tenant or flat building, boarding house, lodging or sleeping house, shall be provided with standard fire escapes, or other fire escapes, equally as good, as hereinafter prescribed, to be located as remote from stairs as possible, and shall be easily accessible to all the occupants of the building without passing through living or sleeping rooms, or rooms which have locks or bolts that will fasten or be otherwise obstructed and with the proper signs and red letters denoting the location of fire escapes."

And plaintiff avers that defendant negligently failed to provide said fourth floor of said building with such standard fire escape or other fire escapes equally as good as provided in said ordinance which were easily accessible to the occupants of said fourth floor without passing through rooms which had locks or bolts that would fasten, and negligently failed to provide said floor with proper signs and red letters denoting the location of the fire escapes, and as a proximate consequence thereof plaintiff suffered and received the injuries and damages set out in the first count of the complaint.

Plea 2 sets up contributory negligence, in that plaintiff negligently remained in said building after knowledge of the fire, and of the danger of remaining, when with reasonable diligence he could have escaped.

Pleas 4 and 6 set up assumption of risk by plaintiff, in that he remained in the service of defendant an unreasonable length of time with knowledge of the dangerous conditions complained of. Demurrers were overruled to each count, and the demurrer

was sustained to plea 6.

At plaintiff's request the following charge was given:

I charge you, gentlemen, that it was the duty of defendant to comply with the laws of the state of Alabama, and the ordinances of the city of Birmingham, in force at the time of the fire, with reference to providing fire escapes or ladders on the building occupied by defendant, and which were destroyed by fire, and a failure to do so would be negligence in and of itself.

Defendant requested instructions to find for defendant under each count of the complaint, and they were severally refused. The defendant also requested the following instructions, which were refused:

E. If, after a fair consideration of all the evidence, your minds are left in a state of confusion as to whether or not plaintiff was entitled to recover, you should find for defendant.

H. The defendant was not the owner of the building which it occupied on the occasion of the fire.

K. No matter whether the evidence showed that the fire escape was adequate or not, plaintiff cannot complain thereof, if you believe from the evidence that he made no attempt to use said fire escape.

L. There is no evidence in this case that the fire originated by reason of any negligence on the part of defendant.

M. The court charges the jury that the law does not impose on a tenant of a building the duty of constructing an exterior escape way from the building.

Tillman, Bradley & Morrow and E.L. All, all of Birmingham, for appellant.

Morris Loveman and F.E. Blackburn, both of Birmingham, for appellee.

SOMERVILLE J.

It is well settled that:

"It is no part of the duty of a master to his servant, employed in a building properly constructed for ordinary business carried on within it, in the absence of a statute requirement, to provide a means of escape from a fire which is not caused by his negligence." 26 Cyc. 1114(B), and cases cited.

Section 7095 of our Code is as follows:

"Any owner, proprietor, or manager of any hotel, office building, school building, store, or manufacturing building, which is more than two stories high, now erected, who shall fail for six months after the adoption of this Code to have securely fixed and conveniently arranged so as to be accessible to persons lodging in, working in, or occupying such building, in case of fire in such building, good and sufficient fire escapes or ladders for each story of said building, shall be guilty of a misdemeanor, and, on conviction, shall be fined not less than fifty nor more than five hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months, for each day so continued."

It is insisted for appellant that, being a penal statute, it must be strictly construed, especially with reference to the classes of persons who are to be subjected to its operation. The argument is that the words "owner, proprietor, or manager," do not, and under a fair construction cannot, include the mere lessee of a building, and that the statute applies the quoted words to the building only, and not to the business conducted within the building.

Similar statutes are to be found in many of the states, and they have been frequently before the courts for construction. Arms v. Ayer, 192 Ill. 601, 61 N.E. 851, 58 L.R.A. 277, 85 Am.St.Rep. 357; Yall v. Snow, 201 Mo. 511, 100 S.W 1, 10 L.R.A.(N...