55 Wn.2d 625, BYRON M. SORENSEN, Respondent, v. WESTERN HOTELS, INC., Defendant, LEOPOLD HOTEL COMPANY, Appellant
[No. 34982. Department Two. Supreme Court February 11, 1960.]
BYRON M. SORENSEN, Respondent, v. WESTERN HOTELS, INC.,
Defendant, LEOPOLD HOTEL COMPANY, Appellant.1
[1] NEGLIGENCE - ACTIONS - EVIDENCE - SUFFICIENCY - NEGLIGENCE OF HOTEL. In an action against a hotel for personal injuries sustained by a guest when he slipped while descending a ramp which connected an alley entrance with the lobby, the jury might have found the hotel to be negligent, where there was evidence that it was raining hard on the day that the guest fell; that the slope of the ramp exceeded one in ten; that the ramp was not provided with handrails; that the surface of the ramp was not roughened or of non-slip material; that the ramp was surfaced with rubber matting grooved lengthwise which provided a slippery footing, and that whenever it rained water was tracked onto the matting, increasing its slipperiness; notwithstanding evidence presented by the hotel that such matting was generally used and not considered dangerous and that in the past twenty-five years, a quarter million people had used the ramp without injury.
[2] SAME - DUTY OF HOTEL TO GUEST. The duty of the hotel to the guest, in such a case, was that of exercising reasonable care to maintain the ramp in reasonably safe condition for the use for which it was intended.
[3] STATUTES - RETROACTIVE OPERATION - REQUISITES. Legislative acts will be given retroactive effect only when that intention is expressed or clearly implied.
[4] MUNICIPAL CORPORATIONS - ORDINANCES - RETROACTIVE OPERATION -BUILDING CODE. There is no clear and unequivocal expression in the 1953 Bellingham City Building Code indicating an intention to make the Code retroactive in its application.
1 Reported in 349 P. (2d) 232.
[2] See Ann. 20 A. L. R. 1154, 27 A. L. R. 585, 42 A. L. R. 1101, 118 A. L. R. 426, 18 A. L. R. (2d) 982, 27 A. L. R. (2d) 822, 58 A. L. R. (2d) 1173, 1178; Am. Jur., Innkeepers, 69.
626 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
[5] SAME. In such a case, it was error, warranting a new trial, for the trial court to admit the 1953 Bellingham Building Code in evidence and to instruct the jury that the Code was applicable, that any violation of the Code was negligence in and of itself, and that the fact that the ramp had no handrails constituted a violation of the ordinance and such was negligence in and of itself, where the hotel had not been built or remodeled since the enactment of the Code.
[6] APPEAL AND ERROR - REVIEW - EXCEPTIONS TO INSTRUCTIONS - SUFFICIENCY. An adequate exception to one of two or more instructions subject to the same error is sufficient to challenge the consideration of the trial court and to bring the question before the Supreme Court for review.
[7] NEW TRIAL - GROUNDS - WAIVER - WHAT CONSTITUTES. In such a case, where the court had been advised that the hotel objected to the applicability of the Building Code to the case by objections to its admission in evidence and by exceptions to instructions thereon, the hotel did not waive the errors warranting a new trial by requesting an instruction: That the plaintiff must prove that violations of the Building Code relied upon as constituting negligence, were also a proximate cause of his fall.
Appeal from a judgment of the Superior Court for King county, No. 509461, James J. Lawless, J., entered October 31, 1958, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries. Reversed; remanded.
Hullin, Ehrlichman, Carroll & Roberts, for appellant.
Henry W. Parrott and McCutcheon, Soderland & Wells, for respondent.
HILL, J. -
The determinative issue here is whether a building code was retroactive, so as to make conditions in existing buildings unlawful which had theretofore been lawful.
The plaintiff, Byron M. Sorensen who had been a guest in the Leopold hotel at Bellingham for about six weeks, slipped while descending a ramp which connected an alley entrance to the hotel with the lobby. He brought an action against the Leopold Hotel Company. A jury awarded him substantial damages, and a judgment was entered on the verdict.
From that judgment the defendant, which we will hereafter refer to as the hotel, appeals and asks for a dismissal
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 627
of the plaintiff's case; or, in the alternative, for a new trial. The issues raised are: (1) whether there was sufficient evidence of negligence to take the case to the jury; a negative answer would warrant a dismissal; and (2) whether the court erred in its instructions that a violation of the 1953 ordinance, adopting a uniform building code, was negligence in and of itself; an affirmative answer would require a new trial.
[1] The plaintiff's allegation, relative to the negligence, was that the slope of the ramp on which he slipped and fell
". . . exceeded one in eight. The ramp was more than eighty-eight (88") inches in width; the ramp was not provided with any handrails at all; the slope of the ramp exceeded one in ten. The surface of the ramp was not roughened or of non-slip material; the ramp was surfaced with rubber matting with the grooving in the rubber mat running lengthwise so as to provide a slippery footing. The ramp was situated immediately inside of the rear exit door; people entering the hotel through that rear door stepped immediately from the outside on to that rubber matting; whenever it was raining the water in the alley and on the parking lot was tracked on to the rubber matting, increasing its slipperiness."
The evidence established that it had been raining hard on the day on which the plaintiff slipped and fell. There was evidence to sustain all of these allegations.
There was evidence, on the other hand, that similar rubber matting was generally used, and that it was not considered unsafe or dangerous; that more than a quarter of a million people had used the ramp in the preceding twenty-five years without incident or injury, at least so far as the management of the hotel knew.
It is not for us to weigh the evidence and to determine what was or was not negligence. We cannot agree with the hotel, that there was no evidence of negligence; and, consequently, we cannot hold that it was entitled to a judgment n.o.v.
[2] Nor can we agree with the contention that the hotel's duty was that of a landlord to a tenant, and, hence, its responsibility was for hidden defects only. We are not
628 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
here concerned with any distinction between a month-tomonth tenancy, such as we found to exist in Bidlake v. Youell, Inc. (1957), 51 Wn. (2d) 59, 315 P. (2d) 644, and McCormick v. Milner Hotels, Inc. (1958), 53 Wn. (2d) 207, 332 P. (2d) 239, and an innkeeper-guest relationship. It is not material whether the defendant was a landlord or an innkeeper, if the portion of the premises on which the]plaintiff was injured was under the control of the defendant.
In a ramp case, Gilbert v. Bluhm (1956) (Mo.), 291 S. W. (2d) 125, 127, 58 A. L. R. (2d) 1164, the Missouri court held that the hotel owed a guest "a duty to exercise ordinary care to maintain the ramp in a reasonably safe condition for the use for which it was intended."
In McGinnis v. Keylon (1925), 135 Wash. 588, 238 Pac. 631, an apartment-house case, we said (p. 592),
". . . All of the cases, however, lay down the rule that it is the duty of the landlord to keep such ways [passageways] reasonably safe for use by the tenants, . . ."
There can be no question but that the duty of the hotel, in this case, was to exercise reasonable care to maintain the ramp in a reasonably safe condition for the use for which it was intended. This brings us to what we, at the outset, designated as the determinative issue in the case: whether the building code adopted by the city of Bellingham in 1953, applied to the defendant's hotel, built in 1913, and to which a new addition had been built in 1929.
It is conceded that the hotel conformed to the building code when it was built and when it was remodeled. The code adopted in 1953, relating to ramps, provided among other things:
(a) The slope of a ramp shall not exceed one in eight.
(b) A ramp with a slope exceeding one in ten shall have handrails as required for stairways. (Stairways were required to have handrails on each side, and every stairway more than eighty-eight (88") inches in width was required to have intermediate handrails dividing the stairway into portions not more than sixty-six (66") inches in width.)
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 629
(c) The surface of ramps shall be roughened, or shall be of non-slip material.
These provisions of the building code give significance to the allegations of negligence that "The slope of the ramp exceeded one in eight," that "the slope of the ramp exceeded one in ten," that "the ramp was more than eighty-eight (88") inches in width," that "the ramp was not provided with any handrails at all," and that "The surface of the ramp was not roughened or of non-slip material."
The trial court concluded that when the plaintiff slipped and fell in 1954, these provisions of the building code, adopted in 1953, were applicable to the hotel built, as we have seen, in 1913, and remodeled in 1929.
The plaintiff and the trial court considered that Fay v. Allied Stores Corp. (1953), 43 Wn. (2d) 512, 262 P. (2d) 189, was conclusive on the issue presented. In that case we affirmed a judgment for the plaintiff who had sustained a fall in a department store on a stairway which had no handrails. At the time of its construction in 1928, it conformed with the building code of the city of Seattle; subsequently, in 1942, the city adopted a new building code which required all stairways over three feet in width to have handrails on both sides; and all stairways over eighty-eight (88") inches or more in width were required to have intermediate handrails, so spaced that there would be not more than sixty-six (66") inches between handrails.
[3] We there recognized the rule that legislative acts will generally be given prospective, and not retroactive, effect; however, we applied the exception: that a legislative act will be given retroactive effect when that intention is expressed or clearly implied.
[4] It will be helpful, in a determination of whether the Fay case is controlling here, to study in parallel columns the provisions of the Seattle building code, which we found to establish a retroactive intent, with the comparable language in the Bellingham building code.
Section 102 in the Seattle ordinance, and 102 and 103 in the Bellingham ordinance state the scope of the respective building codes as follows.
630 SORENSEN v. WESTERN HOTELS [55 Wn. (2d)
SEATTLE, 102 BELLINGHAM, 102
"The Building Code shall apply "The purpose of this Code is to
to . . . alteration, repair, . . . main- provide minimum standards to
tenance, use, occupancy, . . . of all safeguard life and limb, health,
buildings, . . . In interpreting and property, and public welfare by
applying the provisions of this regulating and controlling the de-
Code, such provisions shall in every sign, construction, quality of ma-
instance be held to be the minimum terials, use and occupancy, loca-
requirements adopted for the pro- tion and maintenance of all build-
motion of the public health, safety, ings and structures within the city
comfort or welfare. It . . . shall be and certain equipment specifically
binding upon all... persons having regulated herein.
charge of the alteration, repair, "Wherever in this Code refer-
. . maintenance, use, occupancy, ence is made to the Appendix, the
. . . of the structures . . . to which provisions in the Appendix shall
this Code applies." (Taken from not apply unless specifically
opinion in Fay v. Allied Stores adopted."
Corp., supra; italics being supplied 103
by the court.) "New buildings and structures
hereafter erected in the city, and
buildings and structures moved
into or within the city shall
conform to the requirements of this
Code.
"Additions, alterations, repairs
and changes of use or occupancy
in all buildings and structures
shall comply with the provisions
except as otherwise provided in
Sections 104, 306, and 502 of this
Code.
". . . "
(Italics ours.)
The words "all buildings" in the Seattle code gave the basis for the conclusion of the court in the Fay case, i.e., that the ordinance had a retroactive effect and was intended to be all inclusive. In 103 of the Bellingham code the words "New buildings and structures hereafter erected in the city," indicate a prospective application only, and clearly negate any intent to make the code retroactive, as does the next paragraph with its specific provision that the code shall apply to "Additions, alterations, repairs and changes of use or occupancy in all buildings and structures." (Section 103 of the Bellingham ordinance is verbatim of 103 of the Pasadena, California building code, which was held
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 631
not retroactive in its application.) Stanford v. Bailey, Inc. (1955), 132 Cal. App. (2d) 725, 282 P. (2d) 992, 996. This was also an injury-on-a-ramp case.
Another significant comparison is in the reference to the provision relative to the application of the building code to existing buildings.
SEATTLE, 118 BELLINGHAM, 104
"All buildings and other struc- "(a) General. Buildings or
tures and every part thereof shall structures to which additions, al-
be kept and maintained in a safe, terations, or repairs are made shall
sound and sanitary condition, and, comply with all the requirements
except as otherwise provided the for new buildings or structures ex-
requirements of this Code shall be cept as specifically provided in
considered the standard of safety, this Section.
provided that a structure built un- ". . .
der authority of and in accordance "(b) Additions, Alterations and
with former building ordinances Repairs: More Than 50 Per Cent.
shall not be required to have When additions, alterations, or re-
structural alterations or additions pairs within any 12-month period
made thereto, except where the exceed 50 per cent of the value of
strength of the structure has so an existing building or structure,
deteriorated as to make it unsafe." such building or structure shall be
(No mention is made of this section made to conform to the require-
in Fay v. Allied Stores Corp., su- ments for new buildings or struc-
pra.) tures.
(c) Additions, Alterations, and
Repairs: 25 to 50 Per Cent.
Additions, alterations, and repairs
exceeding 25 per cent but not
exceeding 50 per cent of the value of
an existing building or structure
and complying with the
requirements for new buildings or
structures may be made to such
building or structure within any 12-
month period without making the
entire building or structure
comply. The new construction shall
conform to the requirements of
this Code for a new building of
like area, height, and occupancy.
Such building or structure,
including new additions, shall not
exceed the areas and heights
specified in this Code.
"(d) Additions, Alterations and
Repairs: 25 Per Cent or Less.
632 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
Structural additions, alterations,
and repairs to any portion of an
existing building or structure,
within any 12-month period, not
exceeding 25 per cent of the value
of the building or structure shall
comply with all of the
requirements for new buildings or
structures, except that minor structural
additions, alterations, or repairs,
when approved by the Building
Official, may be made with the
same material of which the
building or structure is constructed.
Such building or structure,
including new additions, shall not
exceed the areas and heights
specified in this Code.
"(e) . . .
"(f) . . .
"(g) Existing Occupancy.
Buildings in existence at the time of the
passage of this Code, may have
their existing use or occupancy
continued, if such use or occupancy
was legal at the time of the
passage of this Code, provided such
continued use is not dangerous to
life.
". . . "
We cannot read these very explicit provisions in the Bellingham ordinance and not reach the conclusion that the Bellingham building code was not intended to apply to existing buildings or structures, except as additions, alterations or repairs were made thereto, or as otherwise specifically indicated. Section 104 (a) of the Bellingham building code is identical with 104 (a) of the Pasadena building code. As heretofore pointed out, that building code has been held not to be retroactive in its application. Stanford v. Bailey, Inc., supra.
We turn to the sections relating to ramps and handrails in the two building codes:
SEATTLE, 606 BELLINGHAM, 3305
"All stairways, except monu- "(g) Handrails. Stairways shall mental entrances with rise and have handrails on each side, and
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 633
run approved as to safety by the every stairway more than eighty-
Superintendent of Buildings, and eight inches (88") in width shall
except as otherwise herein pro- have intermediate handrails divid-
vided, shall have walls or well- ing the stairway into portions not
secured balustrades or guards on more than sixty-Six inches (66")
each side, and handrails shall be in width.
placed on both sides of all stair- "Hand rails shall be placed not
ways over three (3) feet wide. less than thirty inches (30") nor
All such stairways eighty-eight more than thirty-four inches (34")
(88) inches or more in width shall above the nosing of treads, and
be provided with one (1) or more ends of handrails shall be returned
continuous intermediate handrails to the wall."
substantially supported, and the 3306
number and position of interme- "(a) General. A ramp con-
diate handrails shall be such that forming to the requirements of
there are not more than sixty- this Section may be used as an
six (66) inches between adjacent exit.
handrails. The approach newels "(b) Width. The width of ramps
of intermediate handrails shall be shall be as required for corridors.
at least six (6) feet high. Hand- "(c) Slope. The slope of a ramp
rails shall be placed not less than shall not exceed one in eight.
thirty (30) inches nor more than "(d) Handrails. A ramp with
thirty-six (36) inches above the slope exceeding one in ten shall
nosings of the treads. Balustrades have handrails as required for
around stairway balconies, vesti- stairways.
bules, and well holes not adjoin- "(e) Construction. Ramps shall
ing walls shall be not less than be constructed as required for
three feet six inches (3'6") in stairways.
height." "(f) Surface. The surface of
617 ramps shall be roughened or shall
"wherever stairways are re- be of non-slip material."
quired in this Code, ramps with
a slope not greater than one (1)
rise in six (6) horizontal may be
substituted.
"Ramps shall comply with all
applicable requirements for stair-
ways; provided, that where a
ramp has a slope of one (1) rise
in eight (8) horizontal or greater,
handrails shall be required on both
sides, but no intermediate hand-
rails shall be required.
"Ramps shall be surfaced with
approved non-slip material."
These, we think, add little or nothing to our consideration of the issue as to whether the Bellingham ordinance was retroactive or prospective in its application; except, it is to
634 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
be noted, that this court in the Fay case italicized "all stairways" in 606, relating to handrails, in its quotation therefrom on page 516 of 43 Wn. (2d), as emphasizing its position that the Seattle ordinance applied to all buildings.
The plaintiff argues that there is a distinction between provisions which have to do with minimum standards for safety, and provisions which have to do with structural construction. Thus provisions which have to do with the gradient of a ramp might be structural and prospective, and those having to do with a handrail could have to do with safety and be retroactive. There is nothing in the Bellingham building code which supports such a construction, but the uniform building code (adopted by Bellingham) makes it abundantly clear that such was not the idea of those who drafted that code.
By ordinance No. 6851, Bellingham adopted the "Uniform Building Code, 1952 Edition, together with amendments thereto, adopted to this date, and copyrighted by the Pacific Coast Building Officials' Conference," except as specifically modified and changed.
There is an appendix to the printed and copyrighted code which contains suggested sections "which may not be desired in all cities," and the code, as adopted by the city of Bellingham, specifically provided that the "provisions in the Appendix shall not apply unless specifically adopted."
A section in the appendix, not adopted, is most significant, and we quote it:
"EXISTING BUILDINGS
"Sec. 1309. (a) Purpose. The purpose of this Section is to provide a reasonable degree of safety to persons living and sleeping in apartment houses and hotels through providing for alterations to such existing buildings as do not conform with the minimum safety requirements of this Code.
"(b) Scope. The provisions of this Section shall apply exclusively to existing non-conforming Group H occupancies more than two stories in height.
"(c) Effective Date. Eighteen months after the effective date of this Section, every building falling within its scope shall be vacated until made to conform to the requirements of this Section.
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 635
"(d) Number of Exits. . . .
"(e) Stair Construction. All stairs shall have a minimum run of nine inches (9") and a maximum rise of eight inches (8") and a minimum width exclusive of handrails of thirty inches (30"). Every stairway shall have at least one handrail. A landing having a minimum horizontal dimension of thirty inches (30") shall be provided at each point of access to the stairway.
"(f) Interior Stairways . . .
"(g) Exterior Stairways . . .
"(h) Fire Escapes . . .
"(i) Doors . . .
"(j) Exit Signs . . .
"(k) Enclosure of Vertical Openings . . .
"(l) Separation of Occupancies . . .
"(m) Alternates . . ."
The only reason for the adoption of this section is, as indicated, that there are existing hotels and apartment houses which do not conform with the minimum safety requirements of the code. Obviously if the safety requirements of the building code were intended to be retroactive, there would be no necessity for 1309. The city of Bellingham did not adopt this section, and it is clear that it was aware of the necessity of specifically adopting any portions of the appendix it desired to have in its building code, because it did make 2312 (also included in the appendix) applicable to "All buildings in the City of Bellingham hereafter constructed." (This section had to do with lateral bracing because of earthquake possibilities.)
As heretofore indicated, the general rule is that a statute (or ordinance) will be presumed to operate prospectively only, and that it will not be held to apply retroactively in the absence of language clearly indicating such legislative intent. Bodine v. Department of Labor & Industries (1948), 29 Wn. (2d) 879, 190 P. (2d) 89; Lynch v. Department of Labor & Industries (1944), 19 Wn. (2d) 802, 145 P. (2d) 265; Great Northern R. Co. v. Cohn (1940), 3 Wn. (2d) 672, 101 P. (2d) 985.
In Bodine v. Department of Labor & Industries, supra, it was said (p. 889),
"We are committed to the rule that statutes will be
636 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
construed to operate prospectively unless an intent to the contrary has been manifested by the most clear and unequivocal expression."
We find no "clear and unequivocal expression" indicating an intention to make the Bellingham building code retroactive in its application. The clear and unequivocal language seems to point to its prospective application only. It is manifestly distinguishable from the Seattle ordinance which we had before us in Fay v. Allied Stores Corp., supra.
[5] It follows that the trial court erred when it admitted exhibit No. 1 (the 1953 Bellingham city ordinance No. 6851, adopting the "Uniform Building Code, 1952 Edition," except as therein modified), and exhibit No. 2 (the Uniform Building Code, 1952 edition), see Stanford v. Bailey, Inc., supra; and that it erred in giving instruction No. 6, which told the jury that the ordinance was applicable and that any violation of it was "negligence in and of itself": and that it erred in giving instruction No. 7, which told the jury that the ramp in question, which had no handrails, constituted a violation of the ordinance, and that a violation of an ordinance is "negligence in and of itself."
These errors require the granting of a new trial, unless, as the plaintiff contends, the defendant waived these errors by itself requesting instruction No. 8, and to which it took no exception. That instruction is as follows:
"In this case the plaintiff must prove not only that the defendant was negligent in the maintenance of the ramp in question but must further prove that such negligence was the proximate cause of his injury. You are instructed that the ramp was maintained in violation of the Ordinance passed by the City of Bellingham in February of 1953. However, in order to find that the defendant was guilty of negligence which was a proximate cause of plaintiff's injury, you must find that plaintiff's fall would not have occurred had the ramp been maintained in accordance with the City Ordinance. The burden is on plaintiff to prove proximate cause.
"If you should find under the circumstances and conditions which existed at the time of this accident that what happened was an accident which would have occurred on this ramp even had the ramp complied with the provisions
Feb. 1960] SORENSEN v. WESTERN HOTELS, INC. 637
of the City Ordinance then, the defendant's violation of such ordinance would not be a proximate cause of plaintiff's injury. In this event your verdict must be in favor of the defendant.
"On the other hand, if you find that the defendant's negligence was a proximate cause of the injury and, if you further find that the plaintiff used reasonable care under the conditions which existed, then your verdict should be in favor of the plaintiff."
The plaintiff vigorously and plausibly argues that having requested and failed to except to an instruction which says, "You are instructed that the ramp was maintained in violation of the Ordinance passed by the City of Bellingham," that instruction became the law of the case. See Schneider v. Noel (1945), 23 Wn. (2d) 388, 160P. (2d) 1002.
[6] We have held that an adequate exception to one of two or more instructions subject to the same error is sufficient to challenge the consideration of the trial court, which is the purpose of the exception, and to bring the question here for review. Crutcher v. Scott Publishing Co. (1953), 42 Wn. (2d) 89, 104, 253 P. (2d) 925; Franks v. Department of Labor & Industries (1950), 35 Wn. (2d) 763, 770, 215 P. (2d) 416. The added element in this case is that appellant proposed the quoted instruction.
[7] The purpose of the rule requiring exceptions to the instructions is to advise the court of the error claimed. If there was anything in this trial, as to which the plaintiff and the trial court were well advised, it was that the defendant hotel was contending that the 1953 ordinance adopting the uniform building code was not retroactive in its application, and that it was not applicable to the ramp on which the plaintiff slipped and fell. The trial court had ruled that the ordinance was applicable; had admitted it in evidence over strenuous objection; had indicated his intention to give instructions Nos. 6 and 7, to which we have referred, despite the plaintiff's exceptions thereto. It is clear that instruction No. 8 was a proximate-cause instruction, and the defendant had nothing left to argue about, except proximate cause. Instructions Nos. 6 and 7 amounted to a directed verdict, if the grade of the ramp and the absence of
638 SORENSEN v. WESTERN HOTELS, INC. [55 Wn. (2d)
handrails was a proximate cause of the plaintiff's slip and fall. Under these circumstances, the defendant hotel waived nothing by requesting instruction No. 8. As the supreme court of Illinois said in North Chicago Electric Ry. Co. v. Peuser (1901), 190 Ill. 67, 73, 60 N. E. 78,
". . . Being unable to induce the court to instruct the jury according to its view of the true legal principle affecting its rights, the appellant company then presented a series of instructions embodying the theory of the law on the point as held by the court, as the most favorable declaration from the court to the jury possible to be obtained. The appellant company was not required to abandon all chances of a favorable verdict because the court would not grant an instruction to which it believed it was entitled. Without impropriety or the loss of the right to complain of the refusal of the court to declare the law as the company believed it to be, counsel for the appellant company might prepare instructions applicable to its cause in that view of the law which the court had announced that it entertained. The appellant company was powerless to combat the view of the court otherwise than by excepting thereto and preserving such exceptions, as was here done. Its position in the trial court and in this court are in nowise inconsistent. It urged there the same theory of the law that it urges here, and it is nowise at fault for the error which occurred, and consequently not estopped." See, also, Wallner v. Chicago Consolidated Traction Co. (1910), 245 Ill. 148, 153, 91 N. E. 1053.
The defendant hotel only asked for an instruction as to proximate cause embodying the trial court's theory of the law which had been chosen over the objection of the defendant. The appellant neither mislead nor invited the court into error; there was no waiver and no estoppel.
For the reasons indicated, the cause will be remanded to the superior court with instructions to set aside the verdict of the jury and the judgment entered thereon, and to grant the defendant, Leopold Hotel Company, a new trial.
WEAVER, C. J., FINLEY, ROSELLINI, and FOSTER, JJ., concur.