Boyd v. Gogna

TYLER, P. J. Action for damages for personal injuries. The complaint alleged defendants to be the owners of certain real property which was used for hotel purposes and that they failed to install and maintain a fire escape upon the premises; that a fire broke out in the building and plaintiff who was a guest in the hotel was compelled to jump from the second story thereof in order to escape the flames; that in doing so she suffered a fracture of the bones of her right foot. The case was tried by the court sitting without [443]a jury. It found that there was no negligence on the part of defendants in failing to supply a fire escape, as required by a certain ordinance upon the subject, as the mandate contained therein was not directed to the owners of the building. It also found plaintiff to be guilty of contributory negligence as she had ample means of egress from the building without jumping. Judgment accordingly went for defendants. Plaintiff appeals.

The San Francisco ordinance upon the subject of fire escapes, No. 1008, new series, section 224, provides in substance that for the proper and necessary protection of life and property all buildings designated in the ordinance that are already erected and built or that may be hereafter erected and built shall be provided and equipped with fire escapes. The buildings designated in the ordinance are those used or occupied or so constructed as to be occupied, above the second story, as a lodging house. The ordinance further provides that such buildings shall be equipped with metallic fire escapes combined with suitable balconies and railings, firmly secured to the outer walls, so erected and arranged as to make and render escape from the building in case of fire, safe and adequate. By séetion 302 of the ordinance any person, firm or company violating the ordinance is guilty of a misdemeanor punishable by fine or imprisonment. The building in. question was erected, pursuant to a permit issued by the city authorities, prior to the passage of the ordinance, and no fire escapes were demanded at the time of its erection because of the fact that the building contained two stairways. No notice was given to defendants by anyone, after the passage of the ordinance, to construct fire escapes. It will be noticed that nowhere does the ordinance definitely impose upon the owner of a building any duty or liability, and he is not directly mentioned in the ordinance, nor is any other particular person mentioned, the ordinance simply requiring that certain buildings be equipped with fire escapes. It is appellant's contention, however, that the fair intendment of the ordinance is that the owner of a building is included within its mandate, as the ordinance provides that any person who omits to provide the fire escape required is guilty of a misdemeanor, and that this being so the only sensible construction of the language is that it refers primarily to the owner