Burt v. Nichols
| Decision Date | 04 January 1915 |
| Docket Number | No. 16820.,16820. |
| Citation | 173 S.W. 681,264 Mo. 1 |
| Parties | BURT et al. v. NICHOLS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge.
Action by Alice Burt and others, by their guardian, against Adelbert P. Nichols. From a judgment of nonsuit, plaintiffs appeal. Reversed and remanded for new trial.
This is an action by plaintiffs, who are the infant children of Jennie Burt Hoffmaister, for damages accruing by reason of the latter's death in the burning in Kansas City of a building used as a lodging house. The negligence complained of was the failure of defendant to equip the burned building with a fire escape and other safety appliances, as required by the statutes of Missouri and the ordinances of Kansas City.
The building in question was a three-story brick building, or, to be a little more exact, a two-story building with a mansard roof constituting a third story, and consisting of four small rooms in said third, or mansard roof, story. From the second story window to the ground was 16 feet and 8 inches. There was a stairway in the middle of the house leading from the first floor to the second floor, the foot of which stairway was distant 5 feet from the front door. On the south side of this stairway there were three rooms on the second floor, the middle one of which was occupied by deceased. The stairway led up into a hallway on the second floor, which hallway was 5 feet and 10 inches wide. This hallway was not continuous to the east or front end, but led into a small bedroom, which we may call a hall bedroom. This hall bedroom had a window opening out upon a front porch, which porch was about 11 feet from the ground, some 10 feet wide, and practically as long as the house was wide. To the rear, through the hall of the second floor from which the down-going stairs led, there was a small window about 1½ feet wide and 4½ feet long, and some 29 inches from the floor. This window led to a porch on the rear of the building, which porch was about 13 feet from the ground.
The room occupied by the deceased woman had an outside window, which, as stated, was a little over 16 feet from the ground. There was a door leading from this room to the second-story hall, which hall we have already described. Just west and to the rear of the room of deceased was the bathroom, connecting on the south side with the rear part of said hall. There was also a door between the room of deceased and the front room, which said front room had a window opening onto the flat roof of the long front porch; but there is no showing as to whether this door was locked, nor is there any showing as to whether the door to the hall bedroom was locked. As to the latter, it is said there was a cot therein, and that no one was in this room when the firemen got to it; but there is not a syllable in the record showing whether or not the door to the hall bedroom was opened, or closed, or whether it was occupied, or unoccupied, when the fire broke out.
The fire seems to have commenced in the basement, and to have broken through the ground floor near the foot of the stairs, into the hall, at an early stage, and to have raged there more fiercely than at any other point. It was discovered shortly after 5 o'clock on the morning of February 1, 1908. The fire department reached the scene of it only about one minute after the giving of the alarm. The front doors were broken down, and the body of the deceased was found lying near the foot of the stairs in front of the double doors on the first floor and in the vicinity of the fiercest fire in the building. The body was entirely naked and barefooted, and so badly burned as to be unrecognizable. Identification thereof is shown largely by certain rings which were found tightly clasped in the dead woman's hands. These rings were identified by one Paul McDonald, to whom one of the rings belonged, and who had seen the rings in the woman's possession the night preceding the fire, and only about four hours before her death.
When the firemen reached the house, smoke was coming from every window in the building. At the time of the burning of this building, there were some 19 or 20 persons rooming or lodging in it. Of these, some 7 or more were in the third story. Besides Mrs. Hoffmaister, 4 others were burned to death. These 4 were occupants of the small rooms in the third story. All of the persons occupying rooms on both the first and second floors, except Mrs. Hoffmaister, escaped, either by jumping out of windows, or by climbing through the windows onto the porches, which latter were not injured by the fire.
The evidence is undisputed that there was no outside metal stairway or fire escape, nor any scuttles leading to the roof and connecting with the iron stairway, nor any signs upon any doors or windows indicating a fire escape, or indicating a means of exit in case of fire. It was likewise undisputed that the proper place for a fire escape, had the building been equipped with such, was at, or near, either the east or west ends of said second-story hall at the front, or the rear.
It was admitted that defendant was the owner of the house at the time of its destruction. It was leased by a woman by the name of Higgins and used, as stated, as a rooming or lodging house. For how long a period it had so been used does not definitely appear, but it does appear that deceased had roomed in this house for about six months.
There was no evidence in the case as to when deceased first learned of the fire, or that she knew the location thereof. No one saw her after the witness McDonald left her at about 1 o'clock, until she was found by the firemen. No one heard her, so as to identify her voice or her cries, except that the witness Kingery, who occupied a room on the first floor near the stairs, and who states that he heard something, or some one coming down the stairs after the fire had burnt through his door from the hall.
Both the statutes and the city ordinances were relied on. Two sections of the ordinance will become pertinent. They are as follows:
Deceased was employed as a waitress in a restaurant. She had been twice married. The plaintiffs here are the children of the first marriage; their father being dead. Her second husband, Hoffmaister, was living at the time of her death, but he and she were separated, and she had a divorce suit pending against him. Hoffmaister failing to sue for six months, plaintiffs brought this action. A trial was had herein once before; but, a demurrer to the evidence therein being sustained, plaintiffs took a nonsuit. Afterward, and within one year, this suit was begun. A trial was had herein, but at the close of the evidence for the plaintiffs the trial court instructed the jury to find for defendant. Thereupon plaintiffs again took an involuntary nonsuit herein with leave to move to set the same aside. This motion to set said nonsuit aside was duly filed, and, being overruled, plaintiffs have duly perfected this appeal. The question before us is, then, solely whether or not there was enough evidence to go to the jury. To this point we shall direct our attention in the subjoined opinion.
Charles R. Pence, of Kansas City, Claude Hardwicke, of Liberty, and Frank Yeoman, of Kansas City, for appellants. E. D. Ellison and Sebree, Conrad & Wendorff, all of Kansas City, for respondent.
FARIS, J. (after stating the facts as above).
We do not understand it to be seriously contended by defendant that any other phase of sufficiency to make out a case is lacking, except that of evidence of causal connection, or proximate cause. In short, defendant sustains the action of the court below in taking this case from the jury upon the theory that there is nothing in the evidence to show that defendant's failure to equip the burned building with a fire escape and other safety appurtenances called for by statute and the city ordinance was causa causans of the death of plaintiffs' mother. But, lest we err in this, we will notice other points briefly.
I. We do not need to find aught except that there was, on all points necessary to be proved by plaintiffs to make out their case, sufficient evidence, or inferences to be deduced circumstantially from the evidence, to make out a prima facie case. We think this condition is met so as to take the case to the jury on the question of the identity of the body found naked, barefooted, and burned near the foot of the stairs on the first floor, with that of plaintiffs' mother; for the witness Davis, her...
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