Parker v. Kirkwood

• Decision Date: 05 March 1932
• Docket Number: 30308.
• Citation: 8 P.2d 340,134 Kan. 749
• Parties: PARKER v. KIRKWOOD.
• Court: Kansas Supreme Court

8 P.2d 340

134 Kan. 749

PARKER v. KIRKWOOD.

No. 30308.

Supreme Court of Kansas

March 5, 1932

Syllabus by the Court.

Hotel keeper must exercise ordinary care for safety of guest.

In case of fire, hotel keeper must give guests warning which reasonably prudent person would give under circumstances.

In action for death of hotel guest, evidence supported verdict and judgment for plaintiff, based on failure to warn guest of fire in time to permit escape.

Instruction on presumption that person found dead was presumed to have exercised due care held, in view of other instruction, not reversible error because not stating presumption can be indulged only in absence of evidence.

Instruction was not reversible error because in another instruction after defining contributory negligence, court instructed jury that, in determining question, it should consider all evidence introduced, and, if it found from all evidence that deceased was guilty of negligence contributing to injury then plaintiff could not recover.

1. In an action involving the death of a person through the negligence of another, the evidence examined, and held sufficient to support the verdict and judgment.

2. An instruction that, where a person is found dead or killed on account of the negligence of another, the law presumes, in the absence of an eyewitness to the casualty, that such person had exercised due care for his own protection, without the preliminary qualifications that the presumption can only be indulged in in the absence of evidence on the question and that such presumption must be considered in connection with the facts and circumstances of the case, and may be overcome by evidence. Held, not approved by this court, but under the circumstances of this case, it is not reversible error.

3. Other assignments of error relating to instructions given by the court examined, and held to be without merit.

Appeal from District Court, Crawford County, Division No. 2; George F. Beezley, Judge.

Action by Jessie B. Parker against Ida M. Kirkwood. From the judgment, defendant appeals.

C. O. Pingry, Carl Pingry, P. E. Nulton, and G. L. Stevenson, all of Pittsburg, for appellant.

C. S. Denison and T. W. Clark, both of Pittsburg, for appellee.

SLOAN J.

This action is one to recover for the death of a person through the negligence of another. The plaintiff prevailed, and the defendant appeals.

For some time prior to January 7, 1930, the appellant owned the building and operated the Wick Hotel therein, at Pittsburg, Kan. The building was located on the southwest corner of the intersection of Broadway and Seventh street. The main entrance to the hotel was from Broadway into a small lobby in which the office of the clerk was located, and the entrance to the passenger elevator was immediately to the west of the lobby. There was also an entrance to the building from Seventh street. From this entrance there was a stairway, and a part of the space was used as an office for the Red Top Taxi Company. The building was three stories high. The first floor, except as described, was occupied by mercantile establishments. The second and third floors were used as guest rooms. There was a freight elevator and stairway leading from a court in the south wing to the third floor through rooms numbered 237 and 337. The building was constructed in a U-shape with the bottom of the U on Broadway and two wings for the sides of the U extending west from Broadway, with a court between the two wings. In the north wing there were two rows of rooms on each floor with a hall between, and on each of the floors of the south wing there was one row of rooms with a hallway between the rooms and the south wall of the building. There was a fire escape at the west end of each of the halls, and the rooms were properly equipped with ropes. The hotel was equipped with a full system of telephones, and with fire gongs on each floor, which were operated from the lobby.

For some time prior to January 7, 1930, Clarence F. Parker and the appellee, who were husband and wife, occupied rooms 337 and 338, located on the third floor in the south wing of the building. These rooms were immediately west of the freight elevator shaft, and west of room 338 was room 339, which was the west room in the building. The Parkers used room 338 as a living room, and the door to this room was used as an entrance to their suite. The telephone in room 337 had been plugged out, and the Parkers used the telephone in room 338. It was about fifteen feet from the door of room 338 to the fire escape at the west end of the hall.

On the night of January 6, 1930, Parker occupied the suite alone. He had company until 11 o'clock, and retired about 11:30. A fire, the origin of which was unknown, started in or near a trash box on the ground in the open court, near the freight elevator shaft, and was the cause of the death of Parker by suffocation. There is a diversity of opinion as to when the fire was first observed. Some of the witnesses fix it as early as 12:15, and others as late as 12:45. The fire department records show that it was notified of the fire at 12:45. The night clerk testified that he was first notified of the fire about 12:30 or 12:45; that he notified the fire department immediately; that he then took the elevator to the second floor and went through the hall to the stairway leading down to the north entrance in which the office of the Red Top Taxi Company was located. He then went around the building to locate the fire, and found that it had reached the second floor. When he returned to the lobby, he attempted to turn on the fire alarm, but it did not work, and he began operating the switchboard in the office, plugged in and rang the telephones in rooms numbered 339 to 331, inclusive, except room 337, in which the telephone was disconnected, and told the occupants to get out of the rooms as soon as possible. He did not wait for individual responses to the call, and did not know whether he had a response from room 338, but a light appeared on the switchboard from this room, indicating that the receiver was down.

There was evidence to the effect that the fire gong was in operation, and that the telephones did not ring in the rooms on the third floor; that the manager, before the fire was under control, instructed the clerk to stop ringing the telephones that the fire was out; that the night clerk assisted in removing cars in the court away from the fire before returning to the switchboard; and that he had not been instructed how to operate the fire gong. There was evidence establishing that Clarence F. Parker, at the time of his death, was 48 years old, and had been an able-bodied man, earning a salary of $350 per month, and that the appellee was his widow. On this evidence the jury returned a general verdict in favor of the appellee, and answered...