alternately until the engine reaches the cross-ing an exceptionally dangerous one, the railing. Signals required by the foregoing statute road company owed the duty of placing a have been held and are considered as a reason- flagman at the crossing, or to at least reably sufficient warning to travelers of the ap-duce the speed of its train in passing, and proach of a train to an ordinary public cross- for these reasons they were entitled to have ing in the country, which is not an excep- their cause submitted to the jury upon the tionally dangerous one, and when given by question as to whether or not under all the cirthe railroad company at the approach of a cumstances the speed of the train constitrain to such a crossing, they are considered | tuted negligence on the part of the appellees. to be a sufficient exercise of care for the safety of persons using the crossing when they are attended by an adequate lookout. Ky. T. & T. Co. v. Wilson, supra; L., C. & L. R. Co. v. Goetz, supra; L. & N. R. R. Co. v. Molloy, 122 Ky. 119, 91 S. W. 685, 28 Ky. Law Rep. 1113; Parkerson v. L. & N. R. R. Co., 80 S. W. 468, 25 Ky. Law Rep. 2260. As was said in the case of L., C. & L. R. Co. v. Goetz, supra, which was one involving the death of decedent by being struck by a train at a public crossing in the country:

"And the exemption of the appellant [railroad company] from all liability in the event it gave the proper warning of the approach of its trains, and the killing or injury was unavoidable."

This doctrine arises from the fact that although the railroad company and the traveler each have a right to the use of the crossing, the railroad company has the right of way, and, from the reciprocal duty of the traveler to use such care as an ordinarily prudent man would use, under similar circumstances, to learn of the approach of the train, and to keep out of its way.

In the instant case there is no contradiction of the fact as proven that a lookout was maintained by the engineer and fireman. It is substantially proven and not contradicted that the first signal for the crossing was given when the train was at least 50 rods from the crossing, by sounding the whistle. It was blown several times after that and before the train reached the crossing. Davis and wife, though nearly, if not quite, a mile away to the east, heard it. The two Esteses who are west of the crossing, heard it; one of them saying that it sounded four distinct whistles, and the other three. The engineer and fireman testified that the automatic bell on the engine was started ringing at the time the first whistle was blown for the crossing, and continued to ring continuously until after the crossing was reached by the engine. There is no contradiction of this testimony by anything which would amount to evidence.

[4] The appellants, however, contend that, it having been proved that the speed of the train was 45 to 50 miles per hour, and that that was evidence of negligence on the part of the defendants, as the crossing was a place at which the presence of persons was to be anticipated, and that, at such place, it was the duty of the railroad company to moderate the speed of the trains and to approach the crossing with the train under control, so that it could be stopped if any one was discovered to be in danger, and

These contentions, however, we do not think are tenable. The places where the failure to moderate the speed of trains amounts to negligence are, where trains are operated through the streets of towns and cities and populous communities, and where the density of the population renders it probable that persons will at all times be upon the streets and upon the crossings, and therefore their presence is to be anticipated. There are other places, and, under exceptional circumstances, where the ones operating trains are required to anticipate persons upon the tracks, and at such places and under the special circumstances the speed of the train must be moderated, but the general rule, and where there are no exceptional circumstances, is as stated in L. & N. R. R. Co. v. Molloy's Adm'r, 122 Ky. 219, 91 S. W. 685, 28 Ky. Law, Rep. 1113, where it is said:

"The rule that the speed of trains must be moderated applies to cities and towns where the population is dense and the presence of persons may be anticipated on the track at crossings, but it does not apply to highway crossings in the country. *** The rule is that at ordinary * crossings in the country no rate of speed is negligent, but that, where the speed of the train is great, care in giving warnwith the danger must be observed." ing of the approach of the train commensurate

*

The case of C., St. L. & N. O. Ry. Co. v. Armstrong's Adm'r, 168 Ky. 104, 181 S. W. 957, does not sustain a contrary doctrine, as the scene of the accident in that case was a suburb of the considerable city of Paducah, and 125 families resided in close proximity to the crossing, which made it substantially a city crossing, and besides, in that case, the evidence was contradictory as to the warnings of the approach of the train having been given.

[5] The facts in the instant case do not show that the crossing is more than an ordinary one, and no facts are presented which would bring it within the rule applicable to an exceptionally dangerous one, as there is nothing to prevent hearing the warning signals of an approaching train, and nothing to obscure a sight of the train approaching, except for the space of 40 feet. The depot obscures the sight of a train coming from the east from one approaching the track from the north, but the train may be seen by one so approaching the crossing for a very considerable distance before the depot is reached, and after passing the depot it may be seen for 300 yards before it reaches the crossing and before the traveler reaches the

134(11)-PROXIMATE CAUSE

showing the connection between the negligence
It is not indispensable that the evidence
and the injury should be exhibited by the acts or
declarations of the injured party.
7. NEGLIGENCE 62(1)-PROXIMATE CAUSE-
INTERVENING EFFECTIVE CAUSE.

obscure the sight of the train anywhere in 16. NEGLIGENCE
proximity to the crossing. Hence the rule
-EVIDENCE.
which applies to an ordinary county crossing
must be applied to the facts of this case,
and the speed of the train cannot be consid-
ered as negligence. As the uncontradicted
evidence proves that the customary and stat-
utory warnings of the approach of the train
were given, and that the peril of the dece-
dents was not discovered until it was im-
possible for the train crew to avoid the col-
lision, the plaintiffs failed to show any negli-
gence upon the part of the defendants, and
their actions necessarily fail.

Hence it is unnecessary to discuss the effect of the evidence tending to prove that the death of the occupants of the automobile arose entirely from their own negligence or their contributory negligence, and the judgments are therefore affirmed.

(180 Ky. 609)

LOUISVILLE TRUST CO. v. MORGAN.* (Court of Appeals of Kentucky. May 21, 1918.) 1. TRUSTS 235-HOTEL-INJURY TO GUESTS -LIABILITY OF TRUSTEE.

Where a hotel belonging to the estate of a decedent had been leased to another by a trust company acting as trustee for the estate, the trust company was liable in its individual and not in its fiduciary capacity for the death of a guest caused by a fire in the hotel: it appearing that the trustee had been notified that the building was not supplied with fire escapes or fire extinguishers, as required by Ky. St. § 2095a, and a city ordinance, but had failed to remedy conditions, and that its hallways and doors were not arranged so as to facilitate escape in case of fire.

2. STATUTES 40-ENACTING CLAUSE-CONSTITUTIONAL REQUIREMENTS.

Laws 1914, c. 82 (Ky. St. § 2095a), relating to fire regulations in hotels, the title to which is "Be it enacted by the Legislature of the state of Kentucky." is not invalid as being in contravention of Const. § 62, providing that the style of laws shall be "Be it enacted by the General Assembly of the commonwealth of Kentucky"; the defect being one of form merely, and not misleading.

3. INNKEEPERS 10-ACTION FOR INJURIES

-PLEADING-ORDINANCES.

Where the complaining party has some means of escape from an impending danger that he could have availed himself of, or when the means of avoiding it was open to his choice, the cause in the absence of a showing of the connegligence will not be regarded as the proximate nection between the two.

8. INNKEEPERS 10-INJURY TO GUESTPROXIMATE CAUSE-EVIDENCE.

for the death of a guest because of fire, eviIn an action against the trustee of a hotel dence held sufficient to show that the trustee's violation of the Building Code and statutes relating to the prevention of fire was the proximate 9. DEATH 58(1) - CONTRIBUTORY NEGLIcause of the injury.

GENCE
PROOF.

PRESUMPTIONS AND BURDEN OF

Where death ensues as the result of a negligent act, there is no presumption of contributory negligence on the part of deceased, but the burden of showing it is upon the defendant.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division. Action by J. H. Morgan, administrator of the estate of Charles C. Morgan, deceased, against the Louisville Trust Company and another to recover for death of decedent. From a judgment for plaintiff, defendant Louisville Trust Company appeals. Affirmed.

Garnett & Van Winkle, Fred Forcht, and Edwards, Ogden & Peak, all of Louisville, for appellant. Milby & & Henderson, of Greensburg, and A. Scott Bullitt, Keith L. Bullitt, and Bruce & Bullitt, all of Louisville, for appellee.

CARROLL, J. There is located in the city of Louisville on Seventh street a three-story building, known as the Seventh Avenue Hotel, and in December, 1915, during a fire originating in and which partially destroyed this hotel, Charles C. Morgan, William Buckner, and C. F. Buckner, who were guests at the hotel, lost their lives as a result of the fire, and this suit was brought by the administrator of Morgan against the Louisville Trust Company, as trustee, owner, and landlord, and C. P. McClary, as tenant and proprietor of the hotel, to recover damages for his death. It appears that the hotel property was owned by the estate of Emma McBurnie, of which estate the Louisville Trust Com56(1)-PROXIMATE CAUSE-pany was duly appointed, qualified, and act

In an action for the death of a guest in a hotel because of fire, where the petition charged that the hotel was operated in violation of an ordinance specifying the particulars in which the violation consisted, and the reply averred that the building inspector directed the lessor of the hotel to equip its building in accordance with the ordinance giving its title, the ordinance was sufficiently pleaded, especially in view of Ky. St. $ 2775, providing that courts shall take judicial notice of the ordinances of the city. 4. NEGLIGENCE

LIABILITY.

There can be no recovery for injury or loss occasioned by negligence, unless the complaining party can show that the negligence charged contributed to or brought about the injury or loss complained of. 5. NEGLIGENCE 134(11)-PROXIMATE CAUSE

-EVIDENCE.

It is not essential that the causal connection between the negligence and the injury be shown by direct evidence; circumstantial evidence being sufficient.

ing trustee, and as trustee it leased the property to McClary, who was operating it at the time of the fire as a hotel.

Originally, the suit was brought against the Louisville Trust Company as trustee of the estate of Emma McBurnie, and in its individual capacity as a corporation, but upon motion to require the administrator to elect whether he would prosecute the suit

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

against the trust company in its individual this frame building had endeavored to plan capacity or in its fiduciary capacity, the court a room that it would be almost impossible to ruled that it was not liable in its fiduciary escape from, in case of fire in the frame capacity, and thereupon the action proceeded building, he could not well have succeeded in against it in its individual capacity. After locating it, and the means of ingress and the pleadings had been made up there was egress therefrom better than the plans show a trial before a jury and a verdict in favor he did. If there ever was located in a buildof the administrator against the Louisville ing intended to be and that was used as a Trust Company for $6,000, and against Mc- hotel a room that might be described as a Clary for $1,000, and from the judgment on fire trap, room No. 1 fills the description. this verdict the trust company, but not Mc- Indeed, a stranger, as it appears Morgan Clary, prosecutes this appeal. At this point and these Buckners were, would find it difit will be convenient to set out such a de- ficult in the middle of a quiet day to make scription of the hotel building as may be his way from room No. 1 to the main hall necessary to an understanding of the case: and the office, to say nothing of the almost The original building that composed a part insurmountable difficulties that would preof this hotel was made of brick, three stories sent themselves if a stranger in the night, high, and fronted on Seventh street, but aft- and in the midst of a fire, should attempt to erwards a frame addition, extending along find his way to a place of safety. the south side of the brick building, was constructed, and the two buildings constituted the hotel at the time of the fire. The office was on the first floor of the brick building, and leading from the office to the second floor of the brick building there was a stairway going into a hall in the second floor of the brick building that extended from the front to the rear of the building. Morgan, and the Buckners, occupied, on the night of the fire, room No. 1 in the frame building, and between this room and the other rooms and the hall in the brick building there was a brick wall extending from Seventh street to the rear of the building. In this wall that separated completely room No. 1 and the other rooms in the frame building from the brick building and the main hallway therein, there were no doors or other openings except one near the front of the building that furnished a means of exit and entrance to and from the main hall of the brick building to the frame building, and in order to go from the office to room No. 1 it was necessary to go up the stairway to the main hall in the brick building, then down the hall towards Seventh street to the door in the brick wall that opened into the frame building, then across the frame building to a little hall, three feet wide, on the south side of the frame building, then down this hall a few feet to a door that opened into another hall, from which hall there was a door opening into room No. 1, and also a door opening into room No. 2; room No. 1 being back of room No. 2. Room No. 1 had in it two doors, one opening into the little hall above mentioned, and the other into room No. 2, and in the rear of room No. 1 there were two windows that looked out on the roof of the one-story dining room and kitchen.

The fire was discovered about 4 o'clock in the morning by a policeman out on the street, who at once turned in the fire alarm, and within a few minutes thereafter the fire department reached the place, but before they got there the hotel clerk, the porter, and a man named Ash had gone through the building to awaken the guests, all of whom, it appears, made their escape except these three men, who were, apparently, the only occupants of the second floor of the frame building. Ash did not testify in the case, but Louis Thompson, the porter, was introduced as a witness, and said, in substance, that the fire originated in the one-story kitchen, and soon enveloped the entire rear end of the frame building, thereby prohibiting escape from room No. 1 through the windows that opened out on the kitchen roof. At the time the porter reached the little hall, into which the door of room No. 1 opened, this hall was full of suffocating smoke, and he did not go to the door of room No. 1 to alarm the inmates, because, as he said, this service had been performed by Ash, whom he heard calling out "Fire," and knocking on the door of room No. 1. When the fire department reached the building some of the firemen made their way into this little hall on the second floor through the fumes and smoke, and, breaking open the door of room No. 2, which was used as a storeroom, they found Morgan and the two Buckners, all of them either dead or in a dying condition on the floor of this room, to which it appears they had gotten from room No. 1 through the door in the partition between these two rooms. There was also some evidence to show that the fireman found the door of room No. 1 unlocked, and an intimation that the occuIt is difficult to describe, so that it can be pants may have attempted to make their esunderstood, the location in the hotel of room cape through this door, but, being prevented No. 1, and the difficulty of getting from the by the smoke in the hall, they turned to the office, or the main hall in the brick building, door leading into room No. 2, hoping that to or from it, but we have been furnished they might make their escape in that way; with plans of the second floor that enable but there were no doors or openings in that

1, and the door leading into the little hall, and so they were compelled to remain in room No. 2, where they were suffocated by the smoke.

basis of a cause of action. (4) There was no causal connection between the proven negligence and the death of Morgan, or, in other words, there was a failure to show that the Turning now to other matters, it appears negligence of the trust company, in failing to that in 1914 the Legislature enacted a law have the building equipped in the manner proregulating hotels and restaurants, and in this vided in the statute and ordinance, was the act, which is now section 2095a, subd. 6, of proximate cause of the death of Morgan. (5) the Kentucky Statutes, it was provided that: | Error in the instructions, and the admission "In all hotels and restaurants two stories of evidence. (6) Because Morgan was guilty high with ten or more sleeping rooms, where of such contributory negligence as to defeat a sleeping accommodations are furnished to the recovery. public, there shall be provided for each twentyfive hundred feet of area or fractional part thereof an efficient chemical fire extinguisher sued in its fiduciary and individual character, conveniently located in a public hallway out- but upon motion to elect the trial court held side of the sleeping rooms, and always in con- that it was liable in its individual and not in dition for use, or a one and one-fourth inch

[1] As before stated, the trust company was

inside stand-pipe with hose connection and a its fiduciary capacity, and, in so ruling, the hose of sufficient length always attached in such a hallway, which stand-pipe shall be supplied by a sufficient pressure of water."

It further provided that all hotels and resIt further provided that all hotels and restaurants more than two stories high should be equipped with an iron stairway or fire escape on the outside of the building, and that: "The way of egress to such fire escapes shall at all times be kept free and clear of any and all obstructions of any and every nature." Sub

division 8.

trial court was clearly correct. The trust company controlled and managed this hotel property in its fiduciary capacity, and leased it some years before the fire to McClary, or his predecessor, for hotel purposes, and at the time of the fire McClary, as tenant of the trust company, was occupying and using the building with the knowledge and consent of the trust company for hotel purposes. It is further plainly made to appear that the trust It further appears that in 1909 the city of company, in 1914, was notified that the hotel Louisville enacted an ordinance known as the building was not supplied with any of the Building Code, and in section 153 it was pro- equipment mentioned in the statute or ordivided that every building three or more sto-nance for the protection of guests, and that it ries high, used as a hotel, should have at least one fire escape, and as many more as might be necessary for safety; the location of the fire escapes to be subject to the approval of the inspector of buildings; and in section 183 it was further provided that:

passageways

"The doors * * * and * * * shall be arranged * * * to facilitate egress in cases of fire or accident and to afford requisite and proper accommodations for the public protection in such cases."

negligently failed to take any steps to provide this equipment or any part thereof. At the time of the fire there was no fire escape on the building, or fire extinguisher, or standpipes in the building; nor was there any door leading from room No. 1 to the main hall in the brick building, and the means of egress and ingress to and from room No. 1 was so arranged as to prevent, rather than facilitate, egress from this room. In short, the trust company, having violated the law in leasing the building for hotel purposes willfuly failed and refused to comply with any of the requirements of the statute or ordinance, or the notice it received from the fire inspector, and to its neglect in these respects the death of Morgan may reasonably, if not certainly, be "It was the duty of the Louisville Trust attributed. Under these circumstances, the Company, when it permitted the building known general rule is that the trustee is liable in his

In accordance with these statutory and ordinance provisions and section 466 of the Kentucky Statutes, giving a cause of action for injuries resulting from the violations of a statute, the trial court instructed the jury that:

as the Seventh Avenue Hotel to be used as a

hotel, to cause it to be equipped with an effi- individual and not in his official capacity, and cient chemical fire extinguisher conveniently this, for the sound reason that the trustee located in a public hallway outside of the should not be allowed, by his tort or neglisleeping rooms, and an inside standpipe, with hose connection attached, in the hallway, and gence, to impair the trust fund. 39 Cyc. 302; supplied by sufficient pressure of water, and to 11 A. & E. Ency. of Law, 942; Id., 2065; cause the building to be equipped with an City of Louisville v. O'Donaghue, 157 Ky. 243, iron stairway on the outside of the building, 162 S. W. 1110; Helling v. Boss, 121 N. Y. and to cause the doors, stairways, passageways and aisles of the building to be arranged Supp. 1013; O'Malley v. Gerth, 67 N. J. Law, for the facilitation of egress from the sleeping 610, 52 Atl. 563; Blevin's Executor v. French, rooms and all of them in case of fire." 84 Va. 81, 3 S. E. 891; Plimpton v. Richards, Coming now to the errors relied on, we find 59 Me. 115; Elmore v. Elmore, 58 S. C. 289, it urged that the judgment should be revers- 36 S. E. 656, 51 L. R. A. 261; Daily v. Daily, ed: (1) Because the Louisville Trust Com- 66 Ala. 266; Parker v. Barlow, 93 Ga. 700, 21 pany was not liable in its individual capacity. S. E. 213; Sterrett v. Barker, 119 Cal. 492, 51 (2) The act of 1914, regulating hotels and res- Pac. 695; Parmenter v. Barstow, 22 R. I. 245, taurants, was void because the enacting 47 Atl. 365, 63 L. R. A. 227. Nor do we find clause was fatally defective. (3) The city or- in the case of Ireland v. Bowman & Cockrell, dinance was not sufficiently pleaded to be the 130 Ky. 153, 113 S. W. 56, 17 Ann. Cas. 786,

"At the threshold of what we have to say it In the case of Commonwealth v. Illinois might be well to observe that this court has no disposition to give a narrow or technical Central Railroad Co., 160 Ky. 745, 170 S. W. construction to the section of the Constitution 171, L. R. A. 1915B, 1060, Ann. Cas. 1916A, under consideration, or a construction that 515, the court held that the requirement of would make it difficult or impracticable for the Constitution that the style of laws should acts that would not be obnoxious to this prothe Legislature to phrase or construct titles or be as directed was mandatory, and, therefore, vision of the Constitution. The section should when the enacting clause set forth in the Con- be liberally construed so as not to hinder or stitution had been wholly omitted, there was act laws, but at the same time a construction embarrass the Legislature in its efforts to ensuch a departure from the Constitution as to so loose as to virtually nullify the section, render the proposed legislation void, and we which is mandatory in its terms, should not be have no disposition to depart from or ques-anom (the cases] will be found the determined adopted. * Running through all of tion the correctness of that decision. We re- them [the cases] will be found the determined purpose of this court to enforce substantial gard it as thoroughly sound and in keeping compliance with this section, while giving to it