Lee v. Carwile

• Decision Date: 27 October 1964
• Docket Number: No. 1236,1236
• Citation: 168 So.2d 469
• Parties: Soud LEE, Plaintiff-Appellant, v. Charles W. CARWILE, Administrator of the Estate of Mrs. Belle Covington, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 469

168 So.2d 469

Soud LEE, Plaintiff-Appellant, v. Charles W. CARWILE, Administrator of the Estate of Mrs Belle Covington, Defendant-Appellee.

No. 1236.

Court of Appeal of Louisiana, Third Circuit.

Oct. 27, 1964.

Watson & Watson, by Sue C. Watson, Lake Charles, for plaintiff-appellant.

Hall, Raggio & Farrar, by J. L. Cox, Jr. Lake Charles, for defendant-appellee.

Before TATE, SAVOY and CULPEPPER, JJ.

TATE, Judge.

The plaintiff Lee appeals from dismissal of his suit. Lee was a roomer in a boardinghouse owned and operated by the late Mrs. Belle Covington. Lee sued to recover for personal injuries and property damage sustained by him in a fire of unknown origin which destroyed this rooming house. The administrator of Mrs . Covington's estate is made defendant.

The plaintiff contends that the injuries sustained by him were caused or contributed to by Mrs. Covington's negligent failure to provide fire exits, fire extinguishers, and a fire alarm in her building as required by statute. In dismissing the suit, the trial court held that any negligent failure of Mrs. Covington in these regards was not a proximate cause of the plaintiff's injuries.

On appeal, the plaintiff-appellant contends that the trial court erred in absolving the landlady's estate of liability for her failure to provide the mandatory fire-safety precautions, and in holding that the evidence proves no causal connection between the plaintiff's injuries and the lack of these fire safeguards. ¹

At the time of the fire, the plaintiff was a roomer on the second floor of Mrs. Covington's boardinghouse. This was a two-story structure, with nine bedrooms on the second floor. The fire occurred in the early hours of the morning. It started at the rear of the premises and within a relatively short time had burned down the large rooming house. The plaintiff was awakened by shouting after the fire had made considerable progress, and his pesonal injuries were sustained when he jumped from his second-floor window.

The plaintiff contends that he would not have sustained these injuries if the premises had been furnished with certain fire-safety precautions, namely: (1) two adequate fire escapes, as required by LSA-R.S. 40:1580, 40:1585; (2) approved hand-operated fire extinguishers, as required by LSA-R.S. 40:1590; and, (3) a fire alarm system, as allegedly required by LSA-R.S. 50:1589.

As to the last, we shall state now that no showing was made that the statute required a fire alarm system for this particular building. However, no fire extinguishers at all were maintained in the building. Further, the exterior ladders provided as fire escapes did not comply with the statutory specifications, nor did the single interior stairway connecting the first and second floors satisfy the statutory specifications for an interior fire escape. ²

In Moses v. Mosley, La.App. 3 Cir., 146 So.2d 263, 267, we summarized established jurisprudence to the following effect: '(W)here a statute is enacted to protect the class of persons in which the plaintiff is included against the type of loss or injury which in fact has been sustained, an unexcused violation of such a statute is 'negligence per se,' and this negligence is actionable if it is a legal or proximate cause of the accident. * * * (Citations omitted).' The violation is a proximate cause of the plaintiff's injury if the risk or harm encountered by him fall within the scope of the statute's protection, and if such violation is a cause-in-fact of such injury. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298.

Our Supreme Court has noted, in discussing an earlier statute requiring fire escapes that the purpose of such an enactment 'is to preserve the safety of persons from the dangers of fire and panic in certain buildings.' Dotson v. Louisiana Central Lumber Co., 144 La. 78, 80 So. 205, 208. Based on the never-overruled holding and language in that case, plaintiff's counsel contends that the rule of decision applicable to the present facts is that:

'When a fire occurs in a building and damage to another results, violation of a statutory fire safety regulation by the owner or proprietor of the building is negligence per se. In such a case the burden of proof shifts from the plaintiff to the defendant, and the latter must show that the violation or violations was not a proximate cause of the damage to plaintiff.' ³ (See also: Burt v . Nichols, 264 Mo. 1, 173 S.W. 681, L.R.A.1917E, 250 (1915).)

For present purposes, we will assume that this is a correct statement of the law applicable under the circumstances reflected by the present record. We will not discuss the defendant-appellee's contention that the Dotson ruling should be limited to its own particular facts: For even if the Dotson rule is held applicable herein, nevertheless we think that the preponderance of the evidence in this record proves, under the trial court's reasonable evaluation of the testimony, that the lack of fire escapes and fire extinguishers was not a cause-in-fact (or 'proximate cause') of the injuries sustained by the present plaintiff.

Negligence is a cause-in-fact of the harm to another if it was a substantial factor in bringing about such harm; but if the harm would have occurred irrespective of the negligent conduct, then such negligence is not a substantial factor or cause-in-fact of the injuries sustained. Perkins v. Texas & N.O. Railway Co., 243 La. 829, 147 So.2d 646; Dixie Drive It Yourself System New Orleans Co. v . American Beverage Co., cited above.

The trial court held that, by the time the plaintiff awakened, the fire had progressed so far that he could not have reached the inadequate wood-ladder fire escapes provided at the front and rear of the building, whether or not such outside fire escapes had been inclined stairways with railing as required by statute. The trial court held that the landlady's violation of the statute requiring more adequate fire escapes was thus not a proximate cause (cause-in-fact) of the plaintiff's injuries, since the plaintiff would have been forced to jump from his room window whether or not the fire escapes at the ends of the hall had complied with the statutory specifications.

The trial court's factual evaluation of the evidence as so showing is based upon testimony to the following effect: The plaintiff Lee lived in the second room from the rear end of the long hall running from back to front of the ten-room second floor. When the shouting awakened him, he looked out his door. He saw flames along the hall to his left (toward the rear of the building) and heavy smoke in the hall to his right, between his room and the front of the building. Although he knew of the ladder-escape down from the front porch, he did not try to go to the front of the building and use it, but instead went and hung from his window, from which shortly he was forced to jump by the flames and smoke.

Although the plaintiff stated several times that he would have gone to the front and climbed down from the front porch if a proper fire escape had been there instead of the ladder, we find no manifest error in the trial court's evaluation of the testimony as a whole as showing that the hallway was too filled with fire and smoke for the plaintiff to have been able to use this escape route by the time he discovered the fire. This finding is supported by the plaintiff's own admission to the court, 'Your Honor, the way I seen, I couldn't have made it with all that smoke, so that's the reason I went back in the room', Tr. 74, as well as by the allegations of his petition that the flames forced him back into his room and forced him to jump to save his life, Tr. 7 (Art. 8). There are also other corroborating circumstances. For instance, a roomer who lived in the front corner of the second floor, nearer than the plaintiff to the front fire escape and further from the flames in the rear, was unable to escape by the hall, but had to climb out his window. Two other front roomers died in the blaze or as a result of the fire. Another roomer, from the rear room next to the plaintiff's, did successfully negotiate the smoke-filled hall and the escape down the front ladder; but he did so only with great difficulty and because his own windows were aflame, and, by the time he arrived at the ground floor, the plaintiff had also awakened and was hanging out the window.

Under the trial court's evaluation of the totality of the plaintiff Lee's testimony, we think that the defendant has proved by a preponderance of the evidence, i.e., to a legal or reasonable certainty, that, by the time the plaintiff Lee became aware of the fire, the hall was so filled with fire and smoke that he could not have reached and used the outside fire escape, irrespective of whether such escape complied with the statutory specifications.

To satisfy proof of causation by a preponderance of the evidence, the law requires only that the evidence as a whole show that it is more probable than not that the harm resulted from the tort. Perkins v. Texas & N.O. Railway Co., 243 La. 829, 147 So.2d 646 ⁴; see also Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395. See also: Edwards v. Shreveport Creosoting Co., 207 La. 699, 21 So.2d 878, 880: "By a preponderance of evidence is meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition to it. * * *" Here, if the defendant has the burden of proving that there was no causal link between the landlady's negligence and the plaintiff's injuries, the evidence as a whole shows it to be more probable than not the fire had so far progressed when the plaintiff awakened, that he could have saved himself only by jumping from his window.

Thus, the accident and injuries would have occurred whether or not the landlady's fire escapes had met the statutory specifications.

'The issue of cause-in-fact can usually be...