Hunt v. L. Fish Furniture Co.

Appellate Court of Illinois

Hunt v. L. Fish Furniture Co.

187 Ill. App. 326, 1914 Ill. App. LEXIS 698

CourtAppellate Court of Illinois

DecidedJune 15, 1914

DocketGen. No. 19,364

StatusPublished

This text of 187 Ill. App. 326 (Hunt v. L. Fish Furniture Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hunt v. L. Fish Furniture Co., 187 Ill. App. 326, 1914 Ill. App. LEXIS 698 (Ill. Ct. App. 1914).

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Opinion

Mr. Presiding Justice Fitch

delivered the opinion of the court.

It is urged that the third count of the declaration is not sustained by the evidence, and that the court erred in not instructing the jury to disregard it, as requested by defendant’s counsel. Counsel argue that because the only negligence therein charged is “in obstructing the passageway leading to the fire escape,” no recovery can be had upon that count without proof that all approaches or passageways on the sixth floor to the fire escape were obstructed at the time of the fire. We cannot agree with this contention. We think the plaintiff was entitled to recover under that count upon proof of facts from which a jury might reasonably find that the deceased came to her death without her fault because of the negligence of the defendant in obstructing any approach to the fire escape which would otherwise have afforded her a reasonably available means of egress. There was some evidence fairly tending to support that theory. But even if it could be held that so long as any approach to the fire escape, however inconvenient and difficult of access, was unobstructed, no recovery could be had upon this count, still we think, after an examination of the evidence in the record, that it cannot be said that there is no evidence fairly tending to support a finding that every approach to the fire escape was obstructed at the time of the fire. It was shown that direct access to the fire escape was obstructed, to some extent, at least, by a work bench and tool chest standing in front of the only window on the .sixth floor through which the fire escape could be reached. It was also shown that the south aisle was obstructed by furniture recently unloaded from the freight elevator. There is evidence tending to prove that all the aisles were used for the purpose of moving furniture in and out. One witness testified that at the time of the fire “there wasn’t any aisle running through, to my knowledge.” Another testified that at five o’clock of the afternoon preceding the fire, the north aisle (which appellant’s counsel claim was unobstructed) was filled with furniture. There is considerable evidence to the contrary, but that fact would not justify the giving of the peremptory instruction.

It is next urged that the court erred in admitting in evidence certain ordinances in support of the fourth count of the declaration. Two ordinances are set up in the fourth count, the first in substance and the second in haec verba. In support of this count, plaintiff’s counsel offered in evidence Section 675 of the Municipal Code of the city of Chicago, as in force in 1905. That section provides, in substance, that all buildings of four or more stories in height, except private residences shall be provided and equipped with one or more metallic standpipes and ladders combined, or stair fire escapes, with wrought iron or steel balconies, with suitable railings at each floor, and firmly secured to the outer wall. This ordinance was objected to upon the ground that it had been amended, and, in effect", repealed by an ordinance passed in 1907 which provides that all such buildings shall be equipped with one or more stairway fire escapes. The ordinance of 1907 contains a proviso, however, to the effect “that buildings * * * which are now equipped with ladder fire escapes, shall be exempt from the provision of this section; ’ ’ and it appears from the evidence, that the fire escape on defendant’s building was constructed prior to 1907. The original section and the amendment were both admitted in evidence. In connection therewith, section 684 was also offered and admitted over defendant’s objection. That section provides, in substance, that every building in the city “required by law to be equipped with metallic standpipes and wrought iron or steel balconies, or other fire escape devices,” shall have displayed in conspicuous places notices showing the location of such fire escapes and the easiest way to reach them. We think these ordinances were properly admitted in evidence. They are well pleaded in the fourth count and are applicable to the facts of the case. The building in question was one of those mentioned in the proviso to the amended section 675, and was within the class of buildings “required by law” to be equipped with a “fire escape device.” We are also of the opinion that there is some evidence in the record fairly tending to support the material allegations of the fourth count, and that therefore the court did not err in refusing to instruct the jury to disregard the same. But even if there was no competent evidence in support of this count, the alleged error in refusing to' instruct the jury to disregard it would be harmless, so long as there was proof sufficient to sustain a recovery on any other count. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

It is next claimed that the fifth count does not declare upon a violation of the “Factory Act” of Illinois, nor does it state a cause of action at common law. Section 14 of the so-called Factory Act of 1909 (chapter 48, Hurd’s B. S., J. &. A. 5404) provides that “in all factories, mercantile establishments, mills or workshops, sufficient and reasonable means of escape in case of fire shall be provided, by more than one means of egress, and such means of escape shall at all times be kept free from any obstruction and shall be kept in good repair and ready for use, and shall be plainly marked as such.” We think the fifth count states a good cause of action under this statute. It .is true that the statute is not mentioned, but the negligence charged is, in effect, a failure to comply with the statutory requirements. The count states (with perhaps unnecessary particularity) facts which, if true, show that the defendant owed the plaintiff’s intestate a duty under the statute which it negligently failed to perform, and that she was injured without her fault by the defendant’s negligence in. that respect. The facts so alleged are, in substance, to the effect that defendant was operating a mercantile establishment and a workshop; that sufficient reasonable means of escape in case of fire, by more than one means of egress, were not provided by the defendant; that the sole means of escape in case of fire was one fire escape; that it was not kept free from obstructions and ready for use at the time of the fire, and that the plaintiff’s intestate, while in the exercise of due care for her own safety, lost her life because the defendant negligently obstructed the way to the fire escape in such a manner as to make it difficult for her to reach the same when the fire occurred. The count being sufficient under the statute, it is unnecessary perhaps for us to say that we think the count also states a good cause of action at common law. It is undoubtedly true that there was no duty at common law to provide a fire escape. But where it is alleged that a fire escape was in fact provided by an employer for the use of his employes in case of fire, we think the duty devolved upon such employer, apart from the statute, to use reasonable care to keep the means of escape thus provided reasonably free from obstructions so that it may be used as a means of escape when occasion requires. The presence of a fire escape is, in such case, an assurance of safety upon which the employe may rely to a reasonable extent, precisely as he is entitled to rely, to a reasonable extent, upon the apparent condition of any other instrumentality or place provided for his use in and about the work which he is engaged to perform.

It is next contended that the verdict is contrary to the preponderance of the evidence.

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Mr. Presiding Justice Fitch

delivered the opinion of the court.

It is urged that the third count of the declaration is not sustained by the evidence, and that the court erred in not instructing the jury to disregard it, as requested by defendant’s counsel. Counsel argue that because the only negligence therein charged is “in obstructing the passageway leading to the fire escape,” no recovery can be had upon that count without proof that all approaches or passageways on the sixth floor to the fire escape were obstructed at the time of the fire. We cannot agree with this contention. We think the plaintiff was entitled to recover under that count upon proof of facts from which a jury might reasonably find that the deceased came to her death without her fault because of the negligence of the defendant in obstructing any approach to the fire escape which would otherwise have afforded her a reasonably available means of egress. There was some evidence fairly tending to support that theory. But even if it could be held that so long as any approach to the fire escape, however inconvenient and difficult of access, was unobstructed, no recovery could be had upon this count, still we think, after an examination of the evidence in the record, that it cannot be said that there is no evidence fairly tending to support a finding that every approach to the fire escape was obstructed at the time of the fire. It was shown that direct access to the fire escape was obstructed, to some extent, at least, by a work bench and tool chest standing in front of the only window on the .sixth floor through which the fire escape could be reached. It was also shown that the south aisle was obstructed by furniture recently unloaded from the freight elevator. There is evidence tending to prove that all the aisles were used for the purpose of moving furniture in and out. One witness testified that at the time of the fire “there wasn’t any aisle running through, to my knowledge.” Another testified that at five o’clock of the afternoon preceding the fire, the north aisle (which appellant’s counsel claim was unobstructed) was filled with furniture. There is considerable evidence to the contrary, but that fact would not justify the giving of the peremptory instruction.

It is next urged that the court erred in admitting in evidence certain ordinances in support of the fourth count of the declaration. Two ordinances are set up in the fourth count, the first in substance and the second in haec verba. In support of this count, plaintiff’s counsel offered in evidence Section 675 of the Municipal Code of the city of Chicago, as in force in 1905. That section provides, in substance, that all buildings of four or more stories in height, except private residences shall be provided and equipped with one or more metallic standpipes and ladders combined, or stair fire escapes, with wrought iron or steel balconies, with suitable railings at each floor, and firmly secured to the outer wall. This ordinance was objected to upon the ground that it had been amended, and, in effect", repealed by an ordinance passed in 1907 which provides that all such buildings shall be equipped with one or more stairway fire escapes. The ordinance of 1907 contains a proviso, however, to the effect “that buildings * * * which are now equipped with ladder fire escapes, shall be exempt from the provision of this section; ’ ’ and it appears from the evidence, that the fire escape on defendant’s building was constructed prior to 1907. The original section and the amendment were both admitted in evidence. In connection therewith, section 684 was also offered and admitted over defendant’s objection. That section provides, in substance, that every building in the city “required by law to be equipped with metallic standpipes and wrought iron or steel balconies, or other fire escape devices,” shall have displayed in conspicuous places notices showing the location of such fire escapes and the easiest way to reach them. We think these ordinances were properly admitted in evidence. They are well pleaded in the fourth count and are applicable to the facts of the case. The building in question was one of those mentioned in the proviso to the amended section 675, and was within the class of buildings “required by law” to be equipped with a “fire escape device.” We are also of the opinion that there is some evidence in the record fairly tending to support the material allegations of the fourth count, and that therefore the court did not err in refusing to instruct the jury to disregard the same. But even if there was no competent evidence in support of this count, the alleged error in refusing to' instruct the jury to disregard it would be harmless, so long as there was proof sufficient to sustain a recovery on any other count. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

It is next claimed that the fifth count does not declare upon a violation of the “Factory Act” of Illinois, nor does it state a cause of action at common law. Section 14 of the so-called Factory Act of 1909 (chapter 48, Hurd’s B. S., J. &. A. 5404) provides that “in all factories, mercantile establishments, mills or workshops, sufficient and reasonable means of escape in case of fire shall be provided, by more than one means of egress, and such means of escape shall at all times be kept free from any obstruction and shall be kept in good repair and ready for use, and shall be plainly marked as such.” We think the fifth count states a good cause of action under this statute. It .is true that the statute is not mentioned, but the negligence charged is, in effect, a failure to comply with the statutory requirements. The count states (with perhaps unnecessary particularity) facts which, if true, show that the defendant owed the plaintiff’s intestate a duty under the statute which it negligently failed to perform, and that she was injured without her fault by the defendant’s negligence in. that respect. The facts so alleged are, in substance, to the effect that defendant was operating a mercantile establishment and a workshop; that sufficient reasonable means of escape in case of fire, by more than one means of egress, were not provided by the defendant; that the sole means of escape in case of fire was one fire escape; that it was not kept free from obstructions and ready for use at the time of the fire, and that the plaintiff’s intestate, while in the exercise of due care for her own safety, lost her life because the defendant negligently obstructed the way to the fire escape in such a manner as to make it difficult for her to reach the same when the fire occurred. The count being sufficient under the statute, it is unnecessary perhaps for us to say that we think the count also states a good cause of action at common law. It is undoubtedly true that there was no duty at common law to provide a fire escape. But where it is alleged that a fire escape was in fact provided by an employer for the use of his employes in case of fire, we think the duty devolved upon such employer, apart from the statute, to use reasonable care to keep the means of escape thus provided reasonably free from obstructions so that it may be used as a means of escape when occasion requires. The presence of a fire escape is, in such case, an assurance of safety upon which the employe may rely to a reasonable extent, precisely as he is entitled to rely, to a reasonable extent, upon the apparent condition of any other instrumentality or place provided for his use in and about the work which he is engaged to perform.

It is next contended that the verdict is contrary to the preponderance of the evidence. After a careful examination of the evidence in the record, in the light of the very earnest argument of counsel, we think the evidence is such that we would not be justified in disturbing the verdict of the jury. In fact, we regard the evidence of several of the defendant’s witnesses as supporting the plaintiff’s theory of all the essential facts except as to the signs or notices.

It is finally urged that the court erred in not making an accurate statement of the law in two of the given instructions, and in refusing several instructions offered by the defendant. Without discussing each of these objections in detv’ we deem it sufficient to say that we have carefully considered the objections made and are of the opinion that none of them is well taken. The second refused instruction - was misleading, argumentative and assumes that the means of escape were cut off by the fire and not by the obstructions. We think the jury were fairly and fully instructed.

Finding no reversible error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.

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