We are therefore of the opinion that the validity of the act was not affected by the imperfections in the enacting clause.

plicable to injuries resulting from the negligent failure to provide buildings with fire escapes and other safety equipment. Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693; Pauley v. Steam Gauge & Lantern Company, 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194; Arnold v. National Starch Company, 194 N. Y. 42, 86 N. E. 815, 21 L. R. A. (N. S.) 178; Radley v. Knepfly, 104 Tex. 130, 135 S. W. 111..

[3] As to the objection that the ordinance of the city was not properly pleaded, the petition charged that the hotel was being operated in violation of the ordinance, and specified the particulars in which the violation consisted, and in the reply it was further averred that the directions of the building inspector to the trust company in respect to equipping this building in the manner provided by the ordinance was pursuant to "An ordinance of the city of Louisville, approved August 4, 1909, and entitled an ordinance establishing and providing for a department of building for the city of Louisville, and regulating the construction, equipment, maintenance, alteration, repairing and removing of buildings and the occupancy, obstruction of streets and alleys in the performance of same and provided certain penalties for the violation thereof, same to be known and cited as the Building Code." These aver- cumstances, these circumstances will be ments were, as we think, substantially sufficient to comply with the practice, and especially so in view of section 2775 of the Kentucky Statutes, providing that the courts shall take judicial notice of the ordinances of the city.

[4] It is also urgently insisted by counsel that there was a total failure to show that the negligence of the trust company in the respects mentioned was the proximate cause of the death of Morgan, and therefore there could be no recovery against it. If it should be admitted that there was no causal connection between the proven negligence and the proven injury, then the argument of counsel would be well founded, because it is the settled rule, not only in this state, but in other jurisdictions, that 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 v.

of. Thus it was said in Conway V. Louisville & Nashville Railroad Company, 135 Ky. ville & Nashville Railroad Company, 135 Ky.

229, 119 S. W. 206, 122 S. W. 136, that:

"There is also a plain elementary principle of negligence law that to constitute actionable negligence there must be a concurrence of two things: First, negligence; and, second, injury resulting as a proximate cause of it. It matters not how negligent a person may be; his negligence, unless the injuries complained of were the proximate result of it, will not authorize a recovery in damages."

[5] Let us see, now, if there is not evidence, direct or circumstantial, tending to sufficiently show a causal connection between the negligence of the trust company and the death of Morgan, and in considering this feature of the case it should here be said that it is not essentlal that the causal connection should be shown by direct evidence; indeed, direct evidence in many cases like this would be difficult, if not impossible to obtain, although there might be ample circumstantial evidence to sustain the cause of action, and so, when the causal connection can be shown by cir

equally as effective as direct evidence would be.

[6] Nor is it indispensable that the evidence showing the connection between the negligence and the injury should be exhibited by the acts or declarations of the injured party, as it may be shown by facts and circumstances entirely independent of anything that he said or did, as for example by the acts of the party charged with negligence if these acts were of such a nature as that but for them the injury would not have happened.

[7] When, however, 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 is open to his choice, the negligence will not generally be regarded as the proximate cause of the injury in the absence of facts or circumstances showing the connection between the two. To illustrate, if the halls

and doors in this building had been so arranged as to facilitate egress in case of fire, and it appeared that Morgan was unable to

or failed to make his escape on account of fright, or confusion, or delay on his part, or because he was not awakened in time, or because of the rapidity with which the flames spread, or the smoke filling the halls, then we would have a case where the causal connection between the negligence and the injury was lacking. But this general rule, so To the same effect is Davis v. Ohio Valley often applied in negligence cases, should Banking & Trust Company, 127 Ky. 800, 106 have no controlling weight in a case where S. W. 843, 32 Ky. Law Rep. 627, 15 L. R. A. the injured party, on account of the negli(N. S.) 402; Conley v. Ennis, 170 Ky. 125, 185 gence of the other party, has no means of S. W. 501; C., N. O. & T. P. Railway Com- escape, and there is not open to him any way pany v. Perkins, 177 Ky. 88, 197 S. W. 526. by which he can avoid the impending danThis principle in the law of negligence, al- ger. If this were not so, then the greater though it has not heretofore been applied by the negligence the less the liability would this court to a case like this, as this is the be, and the rights of the injured party would first of its kind that has come before us, has be diminished in the same ratio that the often been laid down by other courts as ap-negligence was increased, when the converse

is true, and the greater the negligence the greater the liability.

Coming, now, to apply what we have said to the facts of this case, we think the evidence shows that the failure of Morgan to escape was not caused by fright, or confusion, or delay on his part, or by the rapidity by which the fire spread, or the smoke filled the halls, or by the fact that he was not awakened in time, but by the unsafe and dangerous construction of the interior of the hotel that prevented Morgan from reaching a fire escape if one had been provided, and therefore the rule laid down in the cases of Weeks v. McNulty, supra, and others cited by counsel, have little application to the facts in this case. In the Weeks Case, the court based its opinion that there was no causal connection between the negligence and the injury upon facts showing that the injured party could not have reached the fire escapes if they had been erected on account of the rapid spread of the flames, and other acts committed by him in his fright caused by the presence of the fire; and so in the Radley Case. But in no one of those cases was it made to appear, as in this one, that the injured party would have been prevented from reaching fire escapes if they had been erected by obstacles and obstructions placed in his way by the negligent and unsafe manner in which the hotel was constructed.

A case supporting the doctrine that obstacles and obstructions arising from defects cles and obstructions arising from defects in construction or maintenance will furnish the connecting link between the negligence and injury is Arnold v. National Starch Company, supra. In that case suit was brought by a party injured in a fire to recover damages on account of the failure to have the building equipped with fire escapes, and one of the defenses was that the failure to have the fire escapes was not the proximate cause of the injury. In discussing this point the court said:

the floor; that appellant came in contact with it, and was set on fire some time after it first appeared; and that, if there had been statutory and convenient fire escapes from the windows, she might have escaped thereby before becoming on fire, and, conversely, that the failure to comply with the statute resulted in unnecessary minutes, and that such detention her detention in the burning room for many and inability to escape caused and contributed to her injuries.'

Another case is Kohn v. Clark, 236 Pa. 18, 84 Atl. 692, Ann. Cas. 1913E, 775. In that case the plaintiff brought suit to recover damages upon the ground that the building in which he was employed was not equipped with fire escapes. The trial court directed' a verdict in favor of the defendant upon the ground that it did not appear that the failure to provide the building with fire escapes was the proximate cause of the injury complained of. In considering this feature of the case the court said that the statute provided that:

"The number and location of such escapes to be governed by the size of the building and the number of its inmates, and arranged in such a way as to make them reasonably accessible, safe and adequate for the escape of said inmates."

And that:

"Whether the one external fire escape that was here constructed was an adequate provision for escape during a fire, considering the size of the building and the number of inmates, and whether it was so arranged to make it readily accessible, safe and adequate for the escape of the inmates, were clearly questions for the jury. We have no disposition to weaken by refinement of construction the obligation which this wise and salutary legislation imposes on the owners of such buildings. The act provides an easy way by which they may relieve themselves of responsibility. * So, too, we think the question of proximate cause was for the jury. It may be that one cause of plaintiff's failure to escape unhurt was want of familiarity on the part of the operatives with the means of escape that had been provided; but, suppose the means provided were bound to be short of what the law requires could determine-in such case to hold want of -a matter which the jury as we have said alone familiarity to have been the proximate cause is to imply a duty on the part of the employer to make good the owner's default, by instructing and training his employés as to the best way of using inadequate means of escape."

"But it is further urged in behalf of respondent that its failure to comply with the statute, even if mandatory, may not be made the basis of a recovery for any damages sustained by appellant on the occasion in question, because it was not established that the injuries resulted from such failure. This argument rests on two propositions-the first one being that other sufficient means of escape were provided, and the second one that appellant's clothes and hair took fire immediately when the conflagration reached the room where she was, and that, therefore, her damages accrued before she could possibly have reached the fire escape, if provided. The evidence, in my judgment, permitted the jury to find against this argument, and both of the propositions involved in it. And, on the other proposition, while the evidence may not establish with mathematical accuracy just when the fire reached appellant's clothes and person with refer- to make any statement connected with the ence to its first appearance on the floor, or with transaction, and as no one else saw or heard reference to her final escape therefrom many them from the time they entered this room minutes afterwards, still, as I read it, it per- until the fireman discovered them in a dead mitted the jury to find that, as the result of an accumulation of inflammable dust and ma- or dying condition in room No. 2, there is

[8] What circumstances, it may be inquired, are in the record conducing to show that the death of Morgan was attributable to the failure to have this building equipped. in the manner pointed out in the instructions, and conducing to show that the negligent construction of the building and the location of room No. 1 would have prevented Morgan from reaching the fire escape, if the building had been supplied with one? Morgan and his companions, it should be kept in mind, died before they had an opportunity

Now, we think it clear that the doors and hallways leading from room No. 1 were not so located or arranged as to facilitate egress in cases of fire, or to afford requisite and proper accommodations for the protection of guests; on the contrary, they were so located and arranged as to prevent egress in cases of fire, and to deny the requisite protection, and therefore the trust company will not be heard to say that Morgan could not have found his way to a fire escape if one had been put up, or have found his way out of the room to a place of safety if the building had been equipped with water and fire extinguishers.

made to escape, aside from the circumstance | fire, and kept in such condition as to be, at that they broke the door and went from room all times and under all circumstances, free No. 1 into room No. 2, and the further cir- from obstructions of every kind, and so the cumstance that the door of room No. 1, open- statute and ordinance contemplated not only ing into the little hall, was unlocked, but that the building shall be provided with fire that they did make every possible effort escapes, but that the doors and passageways that men, situated as they were, could make shall be so arranged as to facilitate egress to escape, cannot be doubted in the light of in cases of fire; and it is equally as great universal human experience. But it is said a violation of these legislative requirements by counsel that the flames and fumes and to fail to have the doors and passageways so smoke spread through the hallways so rapid-arranged and kept as it is to fail to have ly that these men could not have stayed the building supplied with fire escapes. the fire with a chemical extinguisher or a hose if there had been one in the hall, nor could they have found their way to a fire escape in the front of the building if one had been there located. Possibly, indeed probably, this may be so in view of the unsafe and dangerous construction of the interior of the hotel, when considered in connection with the location of the room occupied by these men. Proceeding now with this argument a little further, the effect of it is that if guests in a hotel are put in a room from which escape, in case of fire, would be extremely difficult, if not wholly impracticable, there should be no recovery on account of the want of safety equipment, because if the equipment had been supplied, the guests could not avail themselves of its protection. To so construe the statute and ordinance would be to destroy the very purpose of their enactment, and give to them a meaning that would enable owners and lessees of fire traps, like the Seventh Avenue Hotel, to escape liability upon the ground that the rooms and halls were so located and situated as that guests could not avail themselves of fire escapes and other safety equipment if they had been provided. Of course, we cannot agree that the useful provisions of the statute and ordinance should be made worthless by such a construction. They were intended to promote the safety of guests in hotel buildings, and to afford them means of escape from injury and death in cases of fire, which are not of infrequent occurrences in hotel buildings, and they should be given such a reasonable construction as would carry out the wholesome intent in their enactment.

Turning again to these legislative enactments, we find it provided that the hotel should be equipped with a fire escape, 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."

And further that:

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

It would be folly to erect fire escapes that were inaccessible, and therefore the plain meaning of these provisions is that the doors and halls in the hotel should be so arranged as to facilitate egress in cases of 203 S.W.-36

In such a state of case as is here presented, the presumption is that Morgan could and would have escaped if the doors and halls had been so arranged as to facilitate egress and the building had been equipped with requisite appliances. For example, if there had been a door, as there should have been opening from room No. 1 into the main hall in the brick building, it is scarcely to be doubted that Morgan and his companions could easily have made their escape, but as it was, they had no means of escape. Their means of escape had been cut off by the manner in which the hotel was constructed and maintained in violation of the statute and ordinance.

[9] No presumption of negligence or that the failure of Morgan to escape was due to causes within his control is to be indulged in. In cases where death ensues as the result of a negligent act, there is no presumption of contributory negligence on the part of the deceased. Contributory negligence may, of course, be relied on as a defense, but the burden of showing it is on the defendant. Anglea's Adm'r v. East Tennessee Telephone Company, 142 Ky. 539, 134 S. W. 1119; Stuart's Adm'r v. Nashville, Chattanooga & St. Louis Railway Co., 146 Ky. 127, 142 S. W. 232; Osborne's Adm'r v. Cincinnati, New Orleans & Texas Pacific Railway Company, 158 Ky. 176, 164 S. W. 818, Ann. Cas. 1913D, 449. We therefore think that there was sufficient circumstantial evidence to take the case to the jury on the issue that the failure to have the building arranged and equipped in the manner pointed out in the instruction was the proximate cause of the death of Morgan.

Some effort is made to show that Morgan, on the night in question, was intoxicated,

for new trial, alleging the court visited the Affidavits in support of defendant's motion jury room before verdict was returned, in absence of defendant or his counsel, is insufficient, where it is not alleged that defendant did not have knowledge of such fact before the verdict was returned.

but we shall not take up time with this issue [ 8. BASTARDS 73-NEW TRIAL-AFFIDAput in the case for the purpose of endeavor- VITS. ing to make out a defense of contributory negligence. Sufficient is it to say that there is no material evidence supporting this contention. Nor do we find any substantial error committed by the trial court in the instructions, or in the admission of evidence. The judgment is affirmed.

(180 Ky. 642)

HATFIELD v. COMMONWEALTH. (Court of Appeals of Kentucky. May 21, 1918.) 1. BASTARDS 92- WARRANT 92-WARRANT - HARMLESS ERROR.

That a warrant in bastardy proceedings states the date when the child was begotten, and not the date of its birth, if error, is but technical and not substantial or prejudicial, and affords no reason for reversal, in view of Civ. Code Prac. §§ 134, 756; for the very purpose of stating the date of birth is that defendant may be informed thereby of the time when the child must have been begotten, so as to enable him to prepare his defense accordingly. 2. BASTARDS 65 CIRCUMSTANTIAL EVI

DENCE.

Whether or not defendant did have intercourse with complainant in bastardy during the period when the child might have been begotten is a fact that may be established, as any other fact, by direct proof, and also by circumstantial evidence.

Appeal from from Circuit Court, Lawrence County.

Bastardy proceeding by the Commonwealth of Kentucky, on the relation of Jeanette Runyons, against A. E. Hatfield. From a judgment for the Commonwealth, defendant appeals. Affirmed.

J. C. Cantrell, of Stone, and W. T. Cain and Fred M. Vinson, both of Louisa, for appellant. C. F. See, Jr., of Ft. Gay, W. Va., M. S. Burns, of Louisa, and W. A. Daugherty, of Grundy, Va., for the Commonwealth.

CLARKE, J. On May 29, 1916, Jeanette Runyons made affidavit before the clerk of the Lawrence county court that appellant, A. E. Hatfield, was the father of her bastard child, begotten about May 25 or 26, 1915, and procured a warrant to be issued for his arrest. Upon the trial in the county court, the defendant was adjudged to be the father of the child and ordered to pay to the mother for his support $120 a year for 14 years, and from this judgment he appealed to the circuit court, and upon a trial there he was again convicted and a judgment entered against him upon the verdict of the jury requiring him to pay to the mother for the support of the child $84 a year, payable quarterly, for 13 years. A reversal of that judgment is sought upon the following grounds: 92-EVIDENCE-PREJUDICIAL First, that the demurrer to the warrant

3. BASTARDS 65-EVIDENCE.

Proof that shortly before and shortly after the period when the child might have been begotten defendant had intercourse with complainant are circumstances which corroborate the testimony of complainant, and are of probative value to establish the fact in issue, that illicit relations existed during the period of possible gestation. 4. BASTARDS ERROR.

In bastardy proceedings, admission of evidence so remote as to be immaterial, and therefore incompetent, would not be prejudicial error. 5. BASTARDS 65-EVIDENCE.

That three witnesses for accused testified to having had intercourse with complainant during the period of possible gestation, and that they were contradicted by complainant's testimony alone, did not render verdict against defendant flagrantly against the evidence; it being peculiarly the province of the jury to judge of the witnesses' credibility.

6. BASTARDS 92- APPEAL SUCCESSIVE VERDICTS.

Where defendant in bastardy had been convicted by a jury in county court, and on appeal to the circuit court had again been convict ed by a jury, the Court of Appeals would not say that the verdict, the evidence being conflicting, was flagrantly against the evidence. 7. BASTARDS 69-MISCONDUCT OF JUDGE WAIVER.

Alleged misconduct of the trial judge in bastardy proceedings, in that after submission of the case to the jury he went into the jury room and gave information to the jury about the case, in the absence and without the consent of defendant or his counsel, is waived, if defendant, knowing thereof before the verdict is returned, does not object at the time of acquiring such knowledge.

should have been sustained; second, that the court erred in the admission of incompetent evidence; third, that the verdict is flagrantly against the evidence; and, fourth, that the trial judge, after submission of the case, went into the jury room without the knowledge or consent of defendant or his counsel and gave information to the jury about the

case.

[1] 1. The warrant is objected to upon the ground that it does not state accurately, or at all, the time of the child's birth. The warrant does state, however, that the child was begotten on or about the 25th or 26th of May, 1915, and the proof shows that the child was born on February 25, 1916, almost exactly 9 months after the date the child was alleged to have been begotten. Appellant was not misled or prejudiced, in any way, by reason of the fact that the time the child was begotten rather than the time of birth was stated in the warrant; in fact, he was thereby informed definitely of the very fact he was entitled to know. The purpose of requiring the warrant to state the date of birth is that the defendant may be in

formed thereby of the time when it must intercourse with any of these three witnesshave been begotten, so as to enable him to es, and it was for the jury to say whether prepare his defense accordingly. Burnett v. she or they were telling the truth. The mere Commonwealth, 4 T. B. Mon. 106. This the fact that there were three witnesses for the warrant did in the instant case directly defendant testifying about separate acts as rather than indirectly, and the error, if in against the evidence of the complainant reality error, is but technical and not sub- alone on the side of the commonwealth is stantial, and in no wise prejudiced any of not warrant for our holding that the verdict appellant's substantial rights, and affords no is flagrantly against the evidence, because it reason for reversal. Civil Code, §§ 134, 756. was peculiarly the province of the jury to [2, 3] 2. The evidence admitted which it is judge of the credibility of these several witclaimed was incompetent is of the relation- nesses. It is conceded by counsel for apship that existed between the defendant and pellant that there was ample evidence to the complaining witness for some time prior carry the case to the jury, and two juries to and following the time the child was be- having found against him, we are unable to gotten. It is the contention of appellant say that the verdict is flagrantly against the that the commonwealth should have been evidence. limited to the period when a child born February 25, 1916, might have been begotten. We cannot agree that such a strict limitation would have been proper. While it is true that the only issue being tried was whether or not the defendant was the father of the child, and that he could have been the father only if he had intercourse with the complainant within a short time before or after May 25, 1915, whether or not defendant did have intercourse with the complainant during that period is a fact that may be established, as any other fact, by direct proof and also by circumstantial evidence; and proof that shortly before and shortly after that period he did have intercourse with the mother of the child are circumstances which corroborate the testimony of the mother and which are of probative value to establish the fact in issue, that the illicit relations existed during the period of possible gestation.

The rule is thus stated in 5 Cyc. 662: "Evidence of the intimate relations existing between plaintiff and defendant is admissible. So evidence of previous or subsequent intercourse is competent to show the probability of the particular act having occurred, though defendant can only be convicted on proof of the particular act of intercourse charged in the complaint."

See, also, 3 R. C. L. 763, and 7 C. J. 992. [4] It is true that some of the letters introduced and some of the circumstances related were so remote that they were probably immaterial, and therefore incompetent, but, if so, they were not prejudicial.

[5, 6] 3. Appellant insists that the verdict is flagrantly against the evidence, because of the testimony of Dr. York that, if several persons have intercourse with a woman during the gestation period, it is impossible for the woman or any one else to know who the father of the child is, and also of the testimony of three witnesses for the defendant who stated that during this period they had had intercourse with the mother of the child. There would, undoubtedly, be much force in this contention, except for the fact that the complaining witness denied that she ever had

[7, 8] 4. After the verdict had been returned, and in support of his motion for a new trial, defendant filed the affidavit of two of his attorneys that after the submission of the case to the jury the trial judge went into the jury room and gave information to the jury about the case, in the absence and without the consent of defendant or his counsel. The affidavit does not state, however, that the defendant did not know of these visits by the judge to the jury room before the verdict was rendered. If, with such knowledge, the defendant took his chances upon the verdict of the jury, he cannot thereafter complain of the verdict, as it was his duty, unless he intended to waive objection and take his chances upon the verdict, to have made his objection at the time or as soon thereafter as he received information of the fact. Having failed to allege that he did not have knowledge of this fact before the verdict was returned, he 'is not entitled to a reversal. Vanceburg Telephone Co. v. Bevis, 148 Ky. 285, 146 S. W. 420, and authorities there cited. Judgment affirmed.

(180 Ky. 687)

GRAHAM v. ALLISTON. (Court of Appeals of Kentucky. May 24, 1918.) 1. ELECTIONS 230-VALIDITY - CORRUPT PRACTICE-PROMISE OF DEPUTYSHIP. The fact that a Democratic candidate for nomination for sheriff at the primaries has supported the successful Republican candidate, under promise of a deputyship, does not invalidate the election.

2. ELECTIONS 228-SUPPORT OF OPPOSING CANDIDATE-OATH.

A candidate for sheriff at the Democratic primary may support the Republican candidate at the general election, notwithstanding that he took the oath to support and vote for Democratic nominee, as required by Ky. St. $1550, subsec. 6.

ACT-PURCHASE OF VOTERS.

Payments by the chairman of a campaign committee to certain colored preachers of $5 each for their vote and support of a candidate for sheriff constituted a direct violation of the Corrupt Practice Act (Laws 1916, c. 13).

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