Mullins v. Nordlow

• Decision Date: 12 May 1916
• Citation: 185 S.W. 825,170 Ky. 169
• Parties: MULLINS v. NORDLOW. [a1] MULLINS v. SEA (TWO CASES).
• Court: Kentucky Court of Appeals

185 S.W. 825

170 Ky. 169

MULLINS v. NORDLOW. ^[a1]

MULLINS v. SEA (TWO CASES).

Court of Appeals of Kentucky.

May 12, 1916

Appeals from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Actions by Joseph Nordlow against Henry J. Mullins, by A. M. Sea Jr., administrator of the estate of Cromy L. Van Nort deceased, against the same defendant, and by A. M. Sea, Jr. administrator of the estate of Daisy Carter, deceased, against the same defendant. From judgments for plaintiffs, defendant appeals. Affirmed.

Edwards, Ogden & Peak and Blakey, Quin & Lewis, all of Louisville, for appellant.

Elmer C. Underwood and Boyce Watkins, both of Louisville, for appellees.

SETTLE J.

As the three actions out of which these appeals arose involve the same questions of law and fact, and were for that reason tried together in the court below, and the appeals, for the same reason, have been submitted together, the one opinion will be made to apply to all of the cases.

The appellant, Henry J. Mullins, is the owner of a three-story brick building, numbered 126, situated on West Market street, Louisville, Ky. which at about 2 o'clock a. m., June 28, 1912, was partly destroyed by fire, caused by a defective electric fuse box. At the time of the fire the appellee Joseph Nordlow and the decedents Cromy L. Van Nort and Daisy Carter were occupying rooms on the third floor. All three of them were badly burned by the fire. Nordlow survived his injuries, but Van Nort and Daisy Carter were burned to death. These actions were thereupon instituted against appellant; the first by Nordlow, to recover damages for the injuries sustained to his person; the second by Andrew M. Sea, Jr., administrator of the estate of Cromy L. Van Nort, to recover damages for his death; and the third by the same plaintiff, as administrator of the estate of Daisy Carter, to recover damages for her death; the ground of recovery in each case being the alleged negligence of appellant in failing to make reasonable provisions for the escape of the occupants of the building in case of fire. The answer of appellant to each of the petitions denied the negligence alleged, and pleaded various matters in avoidance of the recovery therein sought, some of which the opinion will yet deal with. The joint trial resulted in a verdict, awarding each of the plaintiffs damages; to the appellee Joseph Nordlow, $2,250; to the appellee Andrew M. Sea, Jr., administrator of the estate of Cromy L. Van Nort, $2,000; and to him, as administrator of the estate of Daisy Carter, $1,000. Appellant's dissatisfaction with these several verdicts and the judgments entered thereon, respectively, led to the present appeals.

The building in question has a frontage of 17 feet 10 inches on Market street. The first floor, at the time of the fire, was used as a storeroom by a lessee, the second and third floors were occupied by lodgers, the second floor, with its five rooms, bathroom and toilet, was rented by appellant to one Senning, an unmarried man, and the third floor, also containing five rooms, a bath and toilet, rented by appellant to three men, Ward, Dunn and Staebler. The front room on the third floor was occupied by Roy Sine; the second room by Arthur Ward, one of the lessees who was not in the building at the time of the fire; Charles Rogers, a newspaper reporter, and C. F. Dunn, the latter being another of the lessees, jointly occupied the third room; Cromy L. Van Nort and Joseph Nordlow the fourth room, and Daisy Carter the fifth or kitchen room. The rooms on the third floor were furnished throughout by the lessee Ward, who also furnished the bedclothing, soap, towels, etc., used by the occupants of all the rooms on that floor. Nordlow and Van Nort, who had employment in the city, were paying Ward $1.50 per week each for the room jointly occupied by them, Ward retaining control of their room, supplying it with bedclothing, towels, etc., and attending to having it kept in order. Daisy Carter, who had, for a time previous to fire, occupied a room on the second floor, on the day before the fire obtained of Ward permission to stay for a few days in the kitchen on the third floor, and was provided by him with a cot, upon which to sleep.

The only means of entrance to the second and third floors was a single stairway, leading from a door on the first floor, which opened from the sidewalk. This stairway ran lengthwise of the building to the second floor, and from the second floor in a direction at right angles to the direction of the building until a landing was reached midway between the second and third floors, at which point the stairway turned and ran in the opposite direction to the third floor. This stairway was so constructed as to separate the second from the third room on each floor. Above the stairway on the third floor, opening onto the roof, there was a glass skylight, which in daytime furnished light for that portion of the stairway and, to a limited degree, for the second and third rooms on both the second and third floors, as from these rooms windows opened into the stairway space. There was yet another skylight in the roof which furnished light for the fourth room on the third floor, which room had no outside windows. Indeed, the building had no windows opening directly to the outside air except those at the front and back ends of the building, as the building was adjoined directly on each side by other buildings. The stairway was 3 feet in width, and the hall on the third floor the same width. The hall on the third floor extended lengthwise of the building from the front room, passing the second, third and fourth rooms and ending at a door leading into the room used as a kitchen, and also at a door leading into the bathroom. There were also doors opening into the hall from the second, third, and fourth rooms. Above the rear end of the hall on the third floor there was a small hatchway that opened into a scuttle between the ceiling and the roof of the building, and a bulkhead door that opened from the scuttle to the roof. A ladder hung on hinges at the upper end of the hatchway, which served as a means of reaching the scuttle and the roof from the hall on the third floor. To this ladder was attached a small rope which, passing over a pulley, served to raise the ladder upward and out of the way when it was not in use. It will be seen from what has been said that the only means of ingress or egress to or from the second and third floors of the building was the single narrow wooden stairway running from the side door on the first floor to the hatchway opening on the roof. The building was unprovided with any kind of fire escape.

That the fire originated on the second floor and at the electric fuse box is conceded, as is the fact that the persons living on the third floor were in no wise responsible for the fire. The fire quickly reached the room adjoining the only stairway and being communicated to the stairway opening quickly spread to the third floor. The glass in the skylight on the stairway opening soon fell out, which produced a draft through the stairway, practically converted the second floor into a furnace, and made the heat intense on the third floor. The rooms of the second floor and stairway were badly burned. Those on the third floor were scorched and smoked, but not consumed. The heat, however, from the fire on the second floor was so intense on the third floor that suits of clothing hanging on the walls in certain rooms of the third floor crumbled to powder when touched after the fire, and the fireman who carried Daisy Carter from the burning building testified that, although she was still breathing when carried down, her flesh was so hot as to burn his hands.

As all escape from the building was cut off by the burning stairway, Dunn and Rogers, two of the occupants of the third floor, tried to escape by means of the ladder and trapdoor in the roof, but were unable to open the bulkhead, which by some means or other was so secured that the fastening could not be undone. Nordlow, Daisy Carter, and Van Nort were, like Rogers and Dunn, unable to escape to the roof, but Rogers made a dash through the flames at the stairway and reached the front end of the hall on the third floor, from which point he was afterwards rescued unconscious and badly burned. At the end of two weeks he died of the burns he had received. Dunn jumped from the third floor through the kitchen window to the ground in the rear of the building, breaking many of the bones in his feet and legs, notwithstanding which he managed to crawl to Second and Market streets, where he turned in the fire alarm. He is yet living, and gave a deposition used on the trial of the case, which graphically describes the events of the fire. Van Nort died in the building from his burns and suffocation. The appellee Nordlow saved his life by wrapping his head up in an overcoat and lying down on the floor, but was unconscious when found and removed from the building by the fireman. As previously stated, Daisy Carter died a few minutes after her removal from the building. The following excerpt from the deposition of Dr. Wm. A. Briggs will show the character and extent of the injuries suffered by the appellee Nordlow:

"Most of his body was burnt. On his arm, both arms were badly burned deep. His right arm was burnt badly from shoulders to the fingers, involving the fingers, only slight portions escaping. That in places was burnt down deep right around the elbow. After the sluff came off you could see the bone. His left arm was badly burned, but not as bad as the right. In some places it was burnt deep, but in some places it was protected. His chest was almost a solid sore. His abdomen was burned on one side deep, and the other

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