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

• Decision Date: 16 January 1919
• Docket Number: 6 Div. 825
• Citation: 82 So. 151,203 Ala. 121
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. KYSER.

82 So. 151

203 Ala. 121

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

6 Div. 825

Supreme Court of Alabama

January 16, 1919

On Rehearing, April 10, 1919

On Application of Appellant for Rehearing, May 22, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by George P. Kyser, as administrator, against the Birmingham Railway, Light & Power Company for damages for the death of his intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count sets out that the defendant occupied in the conduct of its business a building in the city of Birmingham located at the northeast corner of First avenue and Twenty-First street which was three stories or more in height, not including the basement; that on the 8th day of May, 1914, while plaintiff's intestate was in the service or employment of the defendant and was engaged in or about the work for which he was employed by the defendant to do on the fourth floor or story of said building, the said building caught fire, and as a proximate consequence thereof plaintiff's intestate was so burned, asphyxiated or otherwise injured that he was caused to fall, jump, or be thrown from said building to the street below and to die. The count concludes with an allegation that the defendant negligently failed to furnish intestate with a reasonably safe place in which to do his work.

The fifth count makes the same statement as the first count, and for negligence avers as follows:

Plaintiff further avers that the said building was an office building, store, or manufacturing plant, and was more than two stories high, and defendant had been in possession of and using said building for more than six months immediately preceding and up to the time of said death, and wrongfully failed to have securely fixed and conveniently arranged so as to be accessible to said intestate, who, as such employé of the defendant, was working in or occupying an upper story of said building at the time of said fire in said building, good and sufficient fire escapes or ladders for the said story of said building on which said intestate was on the occasion aforesaid, and as a proximate consequence of said wrong said intestate's death was caused.

Count 6 is based upon the violation of an ordinance of the city of Birmingham which is as follows:

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, sanitorium, surgical institute, asylum schoolhouse, theater, auditorium, hall, dormitory, place of assemblage, or public resort, store or storehouse, 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 otherwise obstruct it and with proper signs and red letters denoting the location of the fire escapes. The inspectors of buildings and chief of the fire department shall constitute a board to pass on fire escapes, and no fire escape shall be accepted without their approval, and they shall have the authority to decide the number and location of the same, and all fire escapes now or hereafter erected that shall become unsafe or in need of change or repairs the chief of the fire department shall serve notice to make such repairs or changes within the next ten days, and it shall be the duty of the owner, agent, proprietor, or manager of any such building to make such repairs or changes within the time as required by notice, and further the inspector of buildings and chief of the fire department shall have the authority in case of any fireproof buildings or other buildings that in their judgment they deem such escape not necessary in consequence of adequate provisions having been already made for the safety in case of fire, and in such case of exemption they shall give the owner of the building a written certificate to that effect and their reasons thereof if so desired.

And the certificate shall only be valid so long as the condition exists that the same was given under. The certificate shall be signed by the president of the board of commissioners of the city of Birmingham.

All buildings requiring standard fire escapes under this ordinance shall be of the following character of steel Brackets one-half inch by two inches well braced and not more than four feet apart, brackets to extend through the walls with six-inch washers and nuts, lower part of brackets to extend in the wall two inches with a turn-down on the outside, and the brackets to be full width of the balcony. Balcony bottom rail two inches by two inches by one-fourth inch angle well bolted to brackets, bottom center rail to be one and three-fourths by one and three-fourths inch by one-fourth inch angle, balcony floor one inch by two inches by two inches apart riveted to bottom rail; top rail to be one and one-fourth inch by one and one-fourth inch by one-fourth; angle to extend through the wall with six inch washers and nuts. Corner post to be one and one-fourth by one and one-fourth inch by one-fourth inch angle well riveted to tops and bottom rails. Balusters to be one and one-fourth inch by one-fourth inch, three feet high, space not more than twelve inches on centers each way, well riveted to rails. Stair strings shall not be set at angle more than sixty degrees. No rise shall be more than fourteen inches. Stairs shall

be well secured to platform using extra crossbars at bottom of stairs. All stairs shall have three-fourths inch handrail well braced. Drop ladders below balcony, when required, to be eighteen inches wide of one and one-half inch by three-eighths inch for sides three-fourth inch round, placed not over fourteen inches apart well screwed to sides. If required by the inspector of buildings stairs to be used to ground or landing, and made to raise or lower with weights or pulleys, as instructed. When required a ladder or stair to extend to roof well braced and extend over wall to roof and bolted to crosshead under joists, the side to be one-half inch by two inches, the rungs to be three-fourths inch round to be well riveted to sides and spaced not over fourteen inches apart. There shall be a balcony at each floor and a well hole of the proper size in each floor. No balcony shall be less than three feet wide and four feet long. Stairs shall not be less than eighteen inches. All persons whose duty it is to erect fire escapes shall submit drawings and specifications based upon the above sizes for an average fire escape, but if in the judgment of the inspector of buildings the above size is not sufficient for safety, they shall be increased. No fire escape shall be erected until plans and specifications have been approved by the inspector of buildings and a permit taken out for the same.

Tillman, Bradley & Morrow, of Birmingham, for appellant.

Percy, Benners & Burr and Harsh, Harsh & Harsh, all of Birmingham, and Knox, Acker, Dixon & Sims, of Talladega, for appellee.

ANDERSON C.J.

Count 1 of the complaint was not subject to defendant's demurrer. B.R., L. & P. Co. v. Buff, 77 So. 388. Nor was count 5 subject to the demurrer. B.R., L. & P. Co. v. Milbrat, 78 So. 224. Count 5 in the case at bar is not quite so broad in averment as was a similar count in the Milbrat Case, but it contains enough to show that the defendant was such an owner, proprietor, or manager of the building as contemplated by the statute under the construction given same in said case.

Count 6 is based upon an ordinance of the city of Birmingham there set out (and which will be set out in full by the reporter). The said ordinance first provides for standard fire escapes or other fire escapes equally as good, upon the buildings there designated. It then creates a board to pass upon fire escapes, etc., and further provides that said board "shall have authority in case of any fireproof buildings or other buildings that in their judgment they may deem such escape not necessary in consequence of adequate provisions having been already made for the safety in case of fire, *** and in such case of exemptions they shall give the owner of the building a written certificate to that effect and their reasons therefor if so desired." This quoted provision is elliptical, and the words "to exempt the same" should appear as marked between the words "fire" and "and" to carry out the true meaning and intent of the provision as gathered from the context of same, and when considered in its entirety and the supplying of words in a statute or ordinance seem permissible in order to carry out the intent and to avoid repugnancy or inconsistency with such intention. Lewis' Sutherland, Statutory Construction, § 382. On the other hand, without this interpolation, this portion of the ordinance might be void for uncertainty, and the balance is so inseparable therefrom as to be thereby affected, as we cannot say that the ordinance would have been adopted without this provision; that is, that fire escapes would have been required in all events and upon all conditions had not the board been given the right to exempt some of the buildings. At any rate, counsel for both sides argue and treat the ordinance as we interpolate, and we will so consider it. It will be observed that, while the ordinance provides for fire escapes on all buildings of the class dealt...