Crow v. Wolcott

• Citation: 256 P. 971,123 Kan. 702
• Decision Date: 11 June 1927
• Docket Number: 27,447
• Parties: GERTRUDE CROW, Appellant, v. EMERY B. COLSON and FRANK WOLCOTT, Appellees
• Court: United States State Supreme Court of Kansas

256 P. 971

123 Kan. 702

GERTRUDE CROW, Appellant, v. EMERY B. COLSON and FRANK WOLCOTT, Appellees

No. 27,447

Supreme Court of Kansas

June 11, 1927

Decided January, 1927.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE -- Proximate Cause -- Hotel Abutting Street -- Liability for Injury from Falling Screen. The owner and operator of a hotel building abutting on a street is responsible for injuries inflicted to a person on the sidewalk by the falling of a window screen from an upper story, negligently attached to the building.

2. SAME -- Care Required of Hotel Owner -- Negligence in Attaching Screen. Where guest rooms on the second and third floors of a hotel were equipped with ropes and placards directing their use in case of fire, and where screens to the windows were so securely nailed to the building that exit through the windows was not possible except by knocking out such screens, and where if knocked out there was nothing to prevent the screens from falling to the sidewalk below, it cannot be held as a matter of law that the owner or operator of the hotel responsible for the manner in which the screens were attached to the building, is not liable for injuries to one on the sidewalk who is struck by a falling screen knocked out of a window by a guest seeking to escape from a fire.

J. R. Beeching and Charles Hall, both of Hutchinson, for the appellant.

C. M. Williams, D. C. Martindell, W. D. P. Carey, A. C. Malloy, R. C. Davis and Warren H. White, all of Hutchinson, for the appellees.

OPINION

HOPKINS, J.:

The action was one for damages caused by the falling of a window screen alleged to have been negligently attached to a hotel building. A demurrer to plaintiff's petition was sustained and she appeals.

The petition alleged substantially that plaintiff was a resident of Hutchinson; that the defendant Colson is now and has been for several years last past the owner and operator of a lease of the Midland Hotel building, located on the north side of Second street and on the west side of Main street in Hutchinson; that the defendant Wolcott is the owner of the building; that it is three stories in height, designed and used as a hotel; that the second and third stories are used almost exclusively as guest rooms, each occupied with a bed and other necessary furniture; that the guest rooms on the second and third floors are equipped with ropes to be used by guests to escape through the windows in the event of fire; that the windows are of the so-called guillotine type, intended to be opened and closed by sliding upward and downward; that the lower half of the windows of the guest rooms are equipped with screens which were at the time designated negligently, carelessly, wrongfully and improperly attached to the casing of the windows by means of nails driven through the screen frame into an outer portion of the window casing; that they were not attached in a proper manner to be used as exits in the event of fire; that each guest room was provided with a placard or printed card directing persons, in the event of fire, to escape by means of and the use of the ropes through the windows; that on the day of March, 1926, W. R. Crow, plaintiff's husband, was regularly employed as a police officer by the city of Hutchinson; that he was on duty and upon the sidewalk flush with the south line of the Midland Hotel building, at which time fire was in progress in the building; that there were a number of people in the guest rooms; that three window screens were removed from windows by occupants of the building in an attempt to make an exit therefrom, falling on the sidewalk almost simultaneously, one striking plaintiff's husband a severe blow on the head which caused his death; that the defendants knew the screens were carelessly, negligently, wrongfully and improperly attached to the building; and with such knowledge they did for several years last past prior to said fire permit the screens to be so improperly attached; that if they had been properly attached by means of hooks and hinges, or in some other proper manner, they would not have fallen and one of them would not have wrongfully struck plaintiff's husband and caused his death; that the negligence of defendants in knowingly permitting the screens to be improperly, defectively and insecurely fastened in such manner as to make the use of the windows unsafe as an exit was the direct, proximate and immediate cause of the death of plaintiff's husband; that plaintiff was wholly dependent upon the deceased for her livelihood.

The defendants demurred on the ground that plaintiff had no legal capacity to sue and that the petition failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrers on the ground that the manner of fastening the screens "was not the direct and proximate cause of the injury . . . but that there was an intervening cause which was the fire and the guest getting excited and kicking out the screen and which was too remote and too problematical to be taken into consideration in putting the screens in the windows."

Do the facts alleged in plaintiff's petition justify the court's conclusion? We think not. The following statements of the law appear applicable:

"The proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, or constituting a natural and continuous chain of events, each having a close, causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first offense should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (22 R. C. L. 111.)

"A wrongdoer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. . . ." ( A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, 377. See, also, Rodgers v. Railway Co., 75 Kan. 222, 88 P. 885.)

Where defendant knows or has reasonable means of knowing that consequences not usually resulting from the act are likely to intervene so as to occasion damage, he is liable although it be not an ordinary and natural consequence of the negligence. (29 Cyc. 495. See, also, Galveston, H. & S. A. Ry Co. v. Averill, 136 S.W. 98, [Tex. Civ. App.]; Waters Pierce Oil...