Robenson v. Turner
| Decision Date | 20 January 1925 |
| Citation | 206 Ky. 742 |
| Parties | Bella Robenson and Sam Robenson v. Turner. Turner v. Bella Robenson and Sam Robenson. |
| Court | Kentucky Court of Appeals |
Appeals from Jefferson Circuit Court (Common Pleas, Fourth Division).
R. RUTHENBERG and EDWARDS, OGDEN & PEAK for appellants.
WILLIAM MARSHALL BULLITT, GROVER G. SALES and BRUCE, BULLITT & GORDON for appellee.
Affirming as to Bella Robenson and reversing as to Sam Robenson on their appeal, and affirming as to O. T. Turner on his appeal.
Mrs. Bella Robenson owned a three-story apartment house in Louisville. Mrs. May C. Turner and her husband, O. T. Turner, occupied an apartment on the third floor. The house caught fire, and, there being no fire escape, the Turners crawled out on a third floor window sill and Mrs. Turner, who jumped into the life net spread by the fire department, was severely injured. Two suits were filed against Mrs. Robenson and her husband, one by Mrs. Turner for personal injuries, and the other by Mr. Turner for loss of consortium. Mrs. Turner recovered a judgment for $6,500.00 which was affirmed on appeal. Robenson v. Turner, 199 Ky. 642, 251 S. W. 857. On the first trial of this suit for loss of consortium, Mr. Turner recovered a verdict and judgment for $5,629.00, which was set aside by the trial court. The second trial resulted in a verdict and judgment for plaintiff in the sum of $4,430.00. From the last judgment the Robensons appeal, while Turner appeals from the order setting aside the first judgment and asks that it be reinstated.
As the evidence in this case was substantially the same as that heard on the trial of the action for personal injuries, it will not be necessary to restate the facts, or to discuss the same questions that were discussed and settled on the other appeal.
Complaint is made of the fact that the court, after telling the jury in instruction 1 that it was the duty of the defendant, Bella Robenson, to have the apartment building equipped with a fire escape extending to the third floor and affording the occupants of the apartment a safe means of exit in case of fire, used the following language:
"It is shown by the evidence in this case that the defendant, Bella Robenson, and her agent, Sam Robenson, if he was her agent, failed to furnish such a fire escape."
It is only when the evidence is conflicting that an issue of fact should be submitted to the jury. In this case, the uncontradicted evidence shows that the building was not equipped with a proper fire escape, and the court did not err in instructing the jury to that effect. Louisville Ry. Co. v. O'Conner, 101 S. W. 305, does not announce a contrary rule. In that case it was the theory of the plaintiff that she was injured while a passenger. On the other hand, it was the theory of the defense that she was injured after she had ceased to be a passenger. There was evidence to support both theories. While the court instructed on defendant's theory, it at the same time advised the jury in instruction 1 that it was conceded in the testimony and that the evidence made it clear that plaintiff at the time she claims to have been injured was a...
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