Burns v. Property Servicing Co., 44245
| Decision Date | 14 March 1955 |
| Docket Number | No. 44245,No. 1,44245,1 |
| Parties | Clara BURNS, Respondent, v. PROPERTY SERVICING COMPANY, a Corporation, and Kotsrean Realty Company, Inc., Appellants |
| Court | Missouri Supreme Court |
Alexander & Robertson, L.A. Robertson, Ernest E. Baker, St. Louis, for appellants.
Barnhart, Wood & Bransford, Joseph A. Rogers and C. V. Barnhart, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff on April 24, 1952, as the result of an arsonous fire set by a tenant in defendants' three-story apartment building which was not equipped with a fire escape as required by Chapter 320, Sec. 320.010 et seq. RSMo 1949, V.A.M.S. Verdict and judgment were for plaintiff in the sum of $14,000. Defendants have appealed, alleging: (1) that no submissible case was made; (2) error in the instructions; and (3) error in excluding certain proffered evidence.
The case here under consideration arises out of the same fire and in the main presents the same issues as the case of Elwood Gaines v. Property Servicing Co., No. 43,988, Mo., 276 S.W.2d 169, wherein this court affirmed a judgment in favor of plaintiff therein, and to which reference is hereby made.
The building in question, owned and operated by defendants, was a three-story tenement house situate at 103 Channing Avenue, on the west side of the street. It was more than fifty years old. There was no evidence that it ever had been rebuilt or altered. The first floor was about five steps above street level. The front door was located in a vestibule near the northeast corner of the building. A doorway led into an interior hallway, which extended along the north side of the first floor. A stairway led from the first floor hallway to an interior second floor hallway, which also extended along the north wall of the building. A stairway also led from the second floor hallway to an interior hallway on the third floor of the building. The hallway on the third floor also extended along the north wall from an apartment at the east end of the building to an apartment at the west end. The stairway from the first to the second floor and from the second to the third floor was of wooden construction. There was no fire escape on either the outside or inside of the building.
Plaintiff and Elwood Gaines were and for about two years had been tenants of defendants, occupying the one room and kitchenette apartment on the third floor at the east front of the building. Pearl Hodges occupied the apartment at the west rear of the third floor. Two tenants occupied the two apartments on the second floor. One Roosevelt Haley and his wife occupied the one apartment on the first floor.
Plaintiff and Gaines entered the building about three, P.M., on the day of the fire. They heard Haley arguing with his wife. Plaintiff and Gaines proceeded to their apartment on the third floor. After several hours spent in their apartment, plaintiff started downstairs. When she reached the stairway between the first and second floors she saw Haley sprinkling fluid from a five-gallon can about his apartment and the hallway on the first floor. The fluid was burning and she last saw Haley backing up in the hallway as he sprinkled the fluid about. She retreated upstairs, knocked on the doors of the tenants' apartments on the second floor and notified them of the fire, went to the apartment of Pearl Hodges on the third floor rear (west) and notified her of the fire. Pearl Hodges came into the hallway and shortly thereafter returned to her apartment, closing the door thereof. Elwood Gaines, hearing the call of 'Fire', came into the hallway at that time. The fire was then coming up the stairs and hallway. It had passed the second floor and was coming up to the third floor. Plaintiff was terribly scared. She and Gaines went into their apartment. She went to the front bay windows of their apartment trying to escape, but they were of wooden construction and were burning. She there received burns. Gaines took her from those windows, knocked out a south window of their kitchenette and urged her to jump from it to the roof of a lower adjacent building. Her feet were burning and the fire was in the apartment. She was afraid to jump until he preceded her, but did so after he jumped. She was severely burned and injured.
There was no exit from the second and third floors other than down the stairway. The fire was more concentrated in the front of the building. It burned intensely up through the wooden bay windows at the front of the building and westwardly and upwardly through the stairway. The front rooms on all three floors and the stairways were burned more and earlier than the rear rooms.
It is admitted that Secs. 320.010-320.020 RSMo 1949, V.A.M.S., required defendants to maintain a fire escape on the building at a place designated by the Fire Marshal of the City of St. Louis. The Fire Marshal testified that a fire escape on the building would be required to be erected on the west (rear) wall. Thus plaintiff, from her apartment, would have had access to such an escape through the third floor hallway.
Pearl Hodges became caught in a wire at a window of her apartment in an effort to escape and died of burns and injuries sustained as a result of the fire. Haley was convicted of arson in the setting of it.
Defendants contend that the court In the aforesaid case of Elwood Gaines v. Property Servicing Co., No. 43,988, we considered at length each and every argument advanced by defendants herein on this point and held that a submissible case was made. Upon re-examination of these contentions, we are constrained to adhere to the ruling therein made.
Defendants next contend that Instruction No. 1 given at the request of plaintiff was erroneous in that:
(1) 'It directed the jury to find proximate cause if plaintiff could have escaped down a fire escape and excluded from the jury's consideration evidence of the cause of the fire, the kind of fire, the intervening intentional act of a third person in setting the fire, which, if true, justified a finding that the negligence charged was not a proximate cause of plaintiff's injuries, but was only a remote cause and not actionable;'
(2) It 'gave the jury a roving commission to speculate as to where defendant was required to maintain a fire escape on the building, when defendants' only duty was to maintain a fire escape at the place on said building required by law;'
(3) It 'erroneously permits the jury to find against defendants for violation of Section 320.040, V.A.M.S., (which provides for interior fire escapes on buildings erected or altered after passage of statute), when there is no evidence that the building in question was erected or altered after the passage of the statute.'
Instruction No. 1 in the instant case is identical in substance with Instruction No. 1 given at the request of plaintiff in the Gaines case, supra. We there considered each of the foregoing contentions made against it here and ruled them adversely to the defendant. We adhere to that ruling.
Defendants contend that Instruction No. 2, given at the request of plaintiff, 'erroneously permits and directs the...
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