Robenson v. Turner

• Decision Date: 08 June 1923
• Citation: 251 S.W. 857,199 Ky. 642
• Parties: ROBENSON v. TURNER. TURNER v. ROBENSON.
• Court: Kentucky Court of Appeals

251 S.W. 857

199 Ky. 642

ROBENSON v. TURNER.

TURNER v. ROBENSON.

Court of Appeals of Kentucky.

June 8, 1923

Appeal from Circuit Court, Jefferson County, Chancery Branch, Fourth Division.

Action by May C. Turner against Bella Robenson and Sam Robenson. From a judgment for plaintiff against defendant Bella Robenson, that defendant appeals, and from a judgment on directed verdict for the defendant Sam Robenson, plaintiff appeals. Judgment affirmed on each appeal.

R Ruthenburg and Edwards, Ogden & Peak, all of Louisville, for Sam and Bella Robenson.

Bruce Bullitt & Gordon, Wm. Marshall Bullitt, and Grover G. Sales all of Louisville, for May C. Turner.

THOMAS J.

Sam Robenson and Bella Robenson, his wife, reside in Louisville, and the latter owns a three-story building on Fourth street opposite Central Park known as "Park Apartments." They, with their family, consisting of two sons, reside in one of the first-floor apartments, and May C. Turner, with her husband, resided in the south apartment on the third floor. Somewhere near the hour of 7:20 a. m. on December 1, 1919, a fire broke out in the basement of the Park Apartments in a stack of lumber stored therein, and shortly thereafter Mrs. Turner and her husband were awakened, and she went to the front door of their apartment, which opened on the landing of the only stairway in the building. When she opened that door, according to her testimony, the space occupied by the stairway was chokingly filled with smoke, and she also testified that her apartment at that time had a large quantity of smoke in it. She closed the door and procured a towel and went to the washstand to wet it for use in going down the stairway through the smoke, but because of a draft upon the water by those below her or from some other cause there was no water in the hydrant. She again opened the door, and the smoke was equally as dense, if not more so, than at the time of the first opening. Smoke continued to accumulate in her apartment and in the stairway, and her husband called to the crowd below for help. In the meantime Mrs. Turner had gotten through the window and was standing on its sill, when she was advised as well as importuned by members of the fire department who had arrived upon the scene to jump into the net which they and others were holding. For a moment she hesitated, and then yielded and made the leap, from which she received severe injuries to her back, and resulting in permanent injuries, the most serious of which is curvature of the spine. She sued Mr. and Mrs. Robenson to recover damages for her injuries, and in her petition she alleged that defendants were negligent in failing to provide the building with proper fire escapes as required by section 153 of an ordinance of the city of Louisville known as the "Building Code," and also because defendants stored lumber in the basement of the apartment where the furnace for heating it was located contrary to the provisions of subsection 55 of section 3037g of the present Kentucky Statutes, which is a part of the charter of cities of the first class. The answer traversed the allegations of the petition and contained a plea of contributory negligence, which was denied by reply, and upon trial the jury, under the instructions of the court, returned a verdict for plaintiff against defendant Bella Robenson for $6,500; but under the directions of the court to do so, the jury found for defendant Sam Robenson, and to reverse the first judgment, defendant Bella Robenson appeals (which is the first case in the caption), and, complaining of the second one, plaintiff May C. Turner has prosecuted an independent appeal (which is the second one in the caption). Both appeals are prosecuted upon the same record, and will be disposed of in one opinion.

The pertinent part of section 153 of the Building Code of the city says:

"Every building three or more stories high used as a hotel, office building, theater, lodging house, apartment house, tenement or for manufacturing purposes shall have at least one fire escape and as many more as may be necessary for safety."

And section 161 is in this language:

"Inside stairways entirely inclosed by fire walls, and having a location approved by the inspector of buildings, may be used instead of outside fire escapes."

The storing by defendant of the combustible lumber in the basement contrary to the provisions of the statute supra was alleged in the petition, and also that defendants had failed to equip the buildings with any fire escape, and that the stairway furnishing the only means of ingress and egress to and from the apartments, including the third-story one occupied by plaintiff, was not entirely inclosed by fire walls, and did not supply the failure to provide outside fire escapes or itself be considered as one.

In the appeal by defendant Bella Robenson five grounds are urged as errors requiring a reversal of the judgment, which are: (1) Failure of the court to sustain the motion for a peremptory instruction in her favor; (2) because the court improperly indulged in an examination of some of defendants' witnesses; (3) the admission of incompetent evidence by plaintiff; (4) error in the instructions; and (5) because the negligence of defendants, if any, was not the proximate cause of plaintiff's injuries, which ground may be appropriately classed and be considered with and as a part of the first one.

1. In support of this ground reliance is made upon the contention set forth in ground (5), and also that plaintiff was guilty of contributory negligence, and that the stairway was substantially such as is set forth in section 161 of the Building Code and met all the requirements of it, a part of which (section 153) was the construction and erection of one or more fire escapes to the building. Incidentally it is argued that the evidence showed that the smoke which had collected in the stairway was not of such density as to prevent plaintiff or any one acting with reasonable prudence from using it in making her exit, and that the circumstances did not create an emergency or justify her in believing that it was dangerous to do so and did not authorize her to act in emergency by jumping from the window. But we are unable to agree with that contention, since plaintiff testified that when she first opened the door into the stairway the smoke was so dense and thick therein as to be choking and stifling, and in itself dangerous to pass through, and she had no means of knowing whether the fire was in the stairway below her or not, and her testimony as to the conditions was corroborated by that of a number of other witnesses, including the occupants of the other apartment on the same floor who had made their escape down the stairway some few minutes before, but not without great difficulty, and with actual injury to one of them. Some members of the salvage corps and perhaps one of the fire department, and a policeman, fully sustained her testimony, and, while it was contradicted by several witnesses for the defendant, still it was a proper issue for the jury, and the court submitted it under a properly worded instruction.

We are likewise convinced that the question of proximate cause and of plaintiff's contributory negligence may be disposed of in the same manner; i. e., there was abundant evidence on each of them to sustain the...