
    WILCOX v. JAMISON et al.
    No. 3403.
    Decided March 6, 1920.
    (188 Pac. 638.)
    1. LANDLORD AND TENANT — EVIDENCE OF ORIGIN OF PlRE COMPETENT in Action by Tenant Against Landlord for Injuries in Burning Building. In a tenant's action against his landlord for personal injuries due to a fire alleged to have occurred through the landlord’s negligence, evidence respecting the condition of the building after the fire held competent on the issue as to the location of the fire and as tending to locate the place where the fire originated; one of the grounds of negligence being that the fire was caused by the close proximity of a furnace pipe to a wooden floor. (Page 537.)
    2. Landlord and Tenant — Knowledge of Landlord of Ordinance Requiring Pire Escapes Held Immaterial in Tenant’s Action for Injuries. In a tenant’s action against a landlord for personal injuries due to a fire alleged to have occurred because of defendant’s negligence in maintaining a furnace pipe in close proximity to a wooden floor, it was not error to exclude evidence by defendants that they had no knowledge of the existence of an ordinance requiring the building to be equipped with fire escapes and that they had not been notified that they were required to construct fire escapes; the personal knowledge of defendants as to the existence of the ordinance being immaterial. (Page 538.)
    3. Landlord and Tenant — Landlord Liable for Failure to Obey Ordinance Requiring Fire Escape. In tenant’s action against a landlord for personal injuries due to a fire in the building, an instruction that, if the landlord violated the ordinance requiring buildings to be equipped with fire escapes and that such violation by itself or in connection with other acts of negligence on his part was the proximate cause of the injuries, then in case the jury found that such injury was not contributed to by plaintiff’s negligence plaintiff was entitled to recover, was correct. (Page 539.)
    4. Landlord and Tenant — Tenant Held Not Negligent in Choosing Between Hazardous Ways of Escape from Burning Building. In a tenant’s action for personal injuries due to a fire caused by the close proximity of a furnace pipe to a wooden floor, that the tenant upon discovering the fire and finding the main hallway full of smoke endeavored to escape by the back stairs, but being unable to gain access to them returned to her apartment, where she was overcome by heat, did not constitute contributory negligence, since one compelled instantly to choose between two hazards is not negligent if he makes a choice a person of ordinary prudence would have made, although injury results therefrom. (Page 540.)
    5. LANDLORD AND TENANT-CONTRIBUTORY NEGLIGENCE OF TENANT Escaping prom Burning Building Held Question of Fact. In a tenant’s action against a landlord for personal injuries sustained in a fire alleged to have been caused by the landlord’s negligence in maintaining a furnace pipe in close proximity to a wooden floor, evidence held to make the question of plaintiff’s contributory negligence in endeavoring to escape one for the jury.i (Page 540.)
    Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.
    Action by Euth Wilcox against Margaret Jamison and another. ' 
    
    Judgment for plaintiff, and defendants appeal.
    AFFIRMED.
    
      Bay Van Cotí, of Salt Lake City, for appellants.
    
      Willey & Willey, of Salt Lake City, for respondent.
    
      
      
         Newton v. O. S. L. R. Co., 43 Utah, 219, 134 Pac. 567; Davis v. R. R. Co., 45 Utah, 1, 142 Pac. 705.
    
   GIDEON, J.

In January, 1918, the defendants owned an apartment house in Salt Lake City, Utah. The plaintiff, her husband, and one child were then tenants of defendants, occupying an apartment on the fourth floor of said building. The building was heated by a furnace in tbe basement. Tbe defendants furnisbed tbe fuel to heat tbe building, and tbe furnace was under the control of their employé. An iron pipe ten or twelve inches in diameter and about fifteen feet long ran from tbe furnace to the brick flue or chimney. Tbe chimney carried the smoke from the basement out through the top of tbe building. On January 6, 1918, fire broke out in the basement, and the plaintiff was severely burned. Plaintiff alleges: (1) Negligence in maintaining the pipe in close proximity to the wooden floor of the building; (2) negligently overheating the pipe on the day of the fire; and (3) negligently failing to provide any fire escape. Defendants denied the negligence, and as an affirmative defense alleged that the injury was the direct and proximate result of plaintiff’s own negligence and carelessness. The jury returned a verdict for plaintiff. Defendants appeal. Error is assigned in the admission and exclusion of evidence; also, in giving certain instructions.

A witness for the plaintiff was permitted to testify respecting the condition of the building after the fire — that is, to detail the part burned or damaged by the fire — and also the condition of one or two other apartments located on the first floor. The origin or location of the fire was a question in issue, and this testimony was admitted, and was competent, as tending to locate the place where the fire originated. It was the contention of the plaintiff and one of the alleged grounds of negligence that the fire was caused by the pipe being maintained in such close proximity to the wooden floor immediately above the pipe that this floor became ignited and the fire resulted. The testimony of the janitor, an employé of the defendants, was that the pipe was within twelve or fourteen inches of the floor; that prior to the date of the fire he had spoken to one of the defendants about the size of the furnace and the location of the pipe, and in that conversation had advised such defendant that the furnace was too small to heat the building, and as a result he was required, in extremely cold weather, to so feed the furnace that the pipe would frequently become “red hot.” It appears from other evidence that the location of the pipe and the limited space between tbe pipe and tbe floor was known to tbe defendants. Tbe testimony objected to was competent to establish tbe contention of the plaintiff that tbe canse of tbe fire was tbe close proximity of tbe pipe to tbe wooden floor, and that tbe defendants' bad knowledge of tbe conditions.

Tbe court refused to permit tbe defendants to testify that they, or either of them, bad no knowledge of tbe existence of tbe ordinance requiring buildings such as tbe one in question to be equipped with fire escapes, and to tbe further fact that they had never been notified by any officer of Salt Lake City that they were required to construct fire escapes upon the building. It is admitted that the ordinance was in effect at that time and bad been for some time previous. Under tbe authorities, it is wholly immaterial whether tbe defendants bad any personal knowledge of tbe existence of tbe ordinance or.not. Rose v. King, 49 Ohio St. 213, 30 N. E. 267, 15 L. R. A. 160; Arnold v. National Starch Co., 194 N. Y. 42, 86 N. E. 815, 21 L. R. A. (N. S.) 178.

There was no error committed in either tbe admission or in tbe exclusion of testimony.

The ordinance was introduced in evidence. In fact, it was set out in tbe plaintiff’s complaint. Among other things, it provides that—

“Every building of three or more stories in height, and every building used or occupied as a theater, hospital, tenement house, apartment house — above the second story — shall be provided and equippe^ with metallic fire escapes combined with suitable balconies * * * firmly secured to the outer walls.”

The ordinance also provides that such buildings “that are already erected and built, or that may be hereafter erected and built in this city, shall be provided and equipped with fire escapes.”

It is admitted that tbe defendants had not constructed or maintained on the building, or equipped it with, any fire escapes at tbe date of the accident. It also appears that there was no other means of ingress to or egress from plaintiff’s particular apartment save through the front hallway. On the morning of the accident, the fire had rendered it impossible for any one on the fourth floor to leave the building through that hallway. In the rear of the building there were stairways leading to the ground, but there was no direct connection between the apartment occupied by the plaintiff and those stairways. On the contrary, it affirmatively appears that the only way of obtaining egress by means of those stairways was through an apartment located in the rear of the one occupied by plaintiff. The plaintiff attempted to make her escape in that way, but, by reason of her failure to gain admission into the rear apartment, could'not do so.

There is testimony in the record to support plaintiff’s contentions on each ground of negligence alleged.

The court instructed the jury that if they found that the defendants violated the ordinance in question by failing to provide fire escapes and that such violation, by 3 itself or in connection with other acts of negligence on the part of the defendants, was the proximate cause of the injury complained of by the plaintiff, then, in case the jury found that such injury was not contributed to by her own negligence, she was entitled to recover. The principle announced in that instruction is supported by the highest authority. Hayes v. Michigan Cent. R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; Briggs v. New York Cent. & H. R. R. Co., 72 N. Y. 26; Rose v. King, supra.

It appears that the plaintiff, on awakening in the morning and on ascertaining that the building was on fire, opened the door of her apartment leading into the main hallway and found the hallway full of smoke. Thereupon she rushed to the rear end of the building in an effort to escape by way of the back stairs. Being unable to gain access to those stairs, she came back, turned into her own apartment, and just as she was entering, became overcome by the heat and as a result suffered the injuries complained of. The defendants contend that by reason of these acts on the part of plaintiff it was affirmatively shown that her own negligence contributed to and was the immediate cause of the injury. The court, in its fifth instruction, .told the jury that where one is placed by the negligent act of another in such position that he is compelled to choose upon the instant and in the face of great and impending peril between two hazards, and he makes such a choice as a person of ordinary prudence placed in the same situation would probably have made, and injury results therefrom, the fact that if he had chosen the other hazard he would have escaped the injury does not show negligence. It is in the record that the plaintiff knew that there were no fire escapes, and knew there were no other means of escape from the apartment to the ground except by the front and rear stairways. The instruction as given correctly defines the duty or degree of care required of any one who unexpectedly finds himself in a dangerous situation caused by the negligence of another and is compelled to instantly, and without reflection, decide upon a course of action. The principle or rule of law is stated in 29 Cyc. 521, as follows :

“The rule is well established that, when one is required to act suddenly and in the face of imminent danger, he is not required to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties. And this is especially true where the peril has been caused by the fault of another. He .will not be held guilty of contributory negligence merely because he failed to exercise the care a prudent person would have exercised, or because he fails to exercise the best judgment, or takes every precaution which he might have taken which from a careful review of the circumstances it appears he might have taken. But if he in good faith acts as a person of ordinary prudence might under the circumstances, he will not be guilty of contributory negligence even by doing an act which is dangerous and from which injury results in attempting to escape danger.”

See, also, Penn. R. R. Co. v. Werner, 89 Pa. 59; Vallo v. U. S. Express Co., 147 Pa. 404, 23 Atl. 594, 14 L. R. A. 743, 30 Am. St. Rep. 741; 20 R. C. L. 29.

The court submitted the question of the plaintiff’s contributory negligence to the jury under proper instructions, and the jury resolved that issue against the contention of the defendants. Under the facts in this case, reasonable minds might well differ respecting plaintiff’s contributory negligence, and whether such negligence, if she was negligent, was oy was not excusable, or was the'proximate cause of the injury. It was therefore a question for the jury. The court rightfully submitted the issue to tbe jury for determination. Newton v. O. S. L. R. Co., 43 Utah, 219, 134 Pac. 567; Davis v. R. R. Co., 45 Utah, 1, 142 Pac. 705; Palmer v. Dearing, 93 N. Y. 7.

Other errors are assigned and discussed in the brief of appellants. The matters complained of were in no way prejudicial. There being no reversible error in the record, the judgment is affirmed. Appellants to pay costs.

CORFMAN, C. J., and FRICK, WEBER, and THURMAN, JJ., concur.  