Hercules Powder Co. v. Crawford, 13559.

• Decision Date: 30 October 1947
• Docket Number: No. 13559.,13559.
• Citation: 163 F.2d 968
• Parties: HERCULES POWDER CO. v. CRAWFORD.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F.2d 968 (1947)

HERCULES POWDER CO. v. CRAWFORD.

No. 13559.

Circuit Court of Appeals, Eighth Circuit.

October 30, 1947.

Arthur R. Wolfe, of Kansas City, Mo. (James R. Sullivan, of Kansas City, Mo., on the brief), for appellant.

Stanley Garrity, of Kansas City, Mo. (William A. Franken, of Carrollton, Mo., and Scott R. Timmons, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought to recover damages for wrongful death under the statutes of Kansas, Sec. 60-3203, G.S.Kan. 1935, as amended by Laws of Kansas 1939, c. 233, § 2, pp. 467, 468; Sec. 60-3204, G.S. Kan.1935. The parties will be referred to as designated in the trial court.

Plaintiff, suing for the benefit of herself and her minor children, is the widow of Harry E. Crawford, who at the time of his death was an employee of the defendant at the Sunflower Ordnance Works, in Johnson County, Kansas. Harry E. Crawford was burned to death February 22, 1945, while asleep in a room in a barracks or dormitory building used as sleeping quarters for defendant's employees. This structure was one of several operated, maintained and controlled by defendant in connection with the Sunflower Ordnance Works for the use of its employees to whom it rented rooms. As ultimately submitted to the jury, the question was whether the negligence of Bernard Hawkins, defendant's janitor in charge of the barracks, in failing to warn Crawford of the fire after it had been discovered, was the cause of his death. At the close of all the testimony defendant moved for a directed verdict which was denied and the jury returned a verdict in favor of the plaintiff in the sum of $10,000.00, and from the judgment entered on this verdict defendant prosecutes this appeal. In seeking reversal it contends that (1) there is no substantial evidence of negligence; (2) the court erred in failing to instruct the jury as to the applicability of the emergency rule.

Crawford occupied a room in barracks designated in the record as barracks 26. This was a two story building constructed of frame and composition materials, wood floors and partition walls of fiber board, 104 feet in length north and south, by 29½ feet in width, with hallways running the full length of the building on both the first and second floors. On the ground floor there was a door used as the main entrance, which was located in the center of the east side of the building, and which led to the first floor hallway. There was an inside stairway leading to the second floor, located just to the right or north of the east entrance. There was an outside door at each end of the first floor hallway and likewise an outside door at each end of the second floor hallway with outside stairways leading to the ground. Each of these doors at the ends of the hallways had a safety device on the inside known as a "panic lock." The door could be opened from the inside, whether locked or not, by pressing upon a bar on the inside of the door but could not normally be opened from the outside. There were 33 sleeping rooms, 16 on the first floor and 17 on the second floor. There was a laundry room on the west side of the first floor about the center of the building and a telephone on the east wall of the first floor hallway, just south of the east entrance.

During the work shift from 8:00 a. m. to 4:00 p. m., there was one janitor in each barracks and at the time of the fire in question Bernard Hawkins was on duty as janitor in barracks 26 and Alonzo Dunn was on duty in barracks 27. The barracks supervisor or housekeeper, over the janitors was Mrs. Irene Spence. It was the duty of the janitor to clean up the rooms, make up beds, change linen, and call occupants of rooms when requests for calls were left with the janitor, and in general to perform the duties of a janitor. He was instructed not to leave the barracks while on duty, except in an emergency, and to carry out every precaution in case of any condition coming up, to safeguard the lives of the occupants.

Crawford paid defendant $3.50 per week for the room which he was occupying and which had been assigned to him. While the technical relation of inn-keeper and guest may not have existed between defendant and deceased because defendant was not operating an inn or a hotel, in that it did not maintain this dormitory or lodging house as a public place where all transient persons might be received and entertained as guests, but rather for the accommodation of certain of its employees under express contract, at a specified rate, yet so far as the claim of negligence here urged is concerned, the applicable rule would seem to be the same. It was, as the court instructed and as the parties agree, the duty of the defendant to exercise reasonable care for the occupants of this dormitory or lodging house so as seasonably to warn the guests on the discovery of a fire and to call the fire department. Here the duty to warn arose when the janitor learned of the outbreak of the fire. Parker v. Kirkwood, 134 Kan. 749, 8 P.2d 340; Smith v. The Texan, Inc., Tex. Civ.App., 180 S.W.2d 1010; West v. Spratling, 204 Ala. 478, 86 So. 32. The question is therefore a very narrow one; to-wit, whether there was substantial competent evidence that the janitor under the circumstances, after the discovery of the fire, exercised ordinary care in warning Crawford.

The jury having found the issues in favor of the plaintiff, we must take that view of the evidence most favorable to the plaintiff, and plaintiff is also entitled to the benefit of such reasonable and justifiable inferences as may reasonably be drawn from the evidence. Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 8 Cir., 130 F.2d 971; Chicago, St. P. M. & O. Ry. Co. v. Kulp, 8 Cir., 102 F.2d 352, 133 A.L.R. 1445; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213; Champlin Refining Co. v. Walker, 8 Cir., 113 F.2d 844; Hossack v. Metzger, 8 Cir., 156 F.2d 501. If when so viewed, the evidence is such that reasonable men might differ as to the existence of facts established or as to the reasonable inferences that may be drawn from conceded facts,...