Before KALODNER, STALEY and HASTIE, Circuit Judges.
Herbert A. Krinog, a guest in appellee's hotel, was burned to death in his room during a fire which swept through the structure shortly before daybreak. In this action his administrator has sought damages from the hotel proprietor, charging his negligence as a responsible cause of death. A jury found for the defendant and this appeal has been taken from the consequent judgment.
The appellant claims that the district court erred in several rulings on the admissibility of evidence and in certain of its instructions to the jury. We are not satisfied that any of the instructions constituted reversible error. With reference to one of them, however, we think appellant is right in asking that on another trial, unless there should be new evidence tending to show contributory negligence by the decedent, care should be taken that the instruction given on the presumption that one has exercised reasonable care for his own safety not be minimized by any accompanying language which might cause the jury to believe that it would be justified here in regarding the presumption as rebutted. Whether there may be other particulars in which instructions can usefully be rephrased or supplemented on another trial we leave to the consideration of the district court if and when occasion arises.
On the other hand, one of the questioned rulings of the court on the admissibility of evidence was in our judgment erroneous and hurtful to the plaintiff to the extent that there must be a new trial. The ruling is properly viewed and considered in its trial setting.
The plaintiff made no effort to show that the defendant was negligent in causing the fire, but sought to show negligence in failing to give adequate warning after the fire had started. It appears that the hotel was a small, three-story, frame structure, the class of which is indicated by room rental rates of about $7 per week per person in June, 1951, when the fire occurred. Normally, and on the night of the fire, no desk clerk, watchman, or other attendant was on duty in the hotel during the hours preceding daybreak. There was no internal fire alarm system or mechanical means of sounding an alarm within the premises. The only telephone was a pay station on the first floor.
In these circumstances it was a permissible theory, and one which the plaintiff tried to substantiate by proof, that defendant was negligent in not having some automatic warning system designed to sound an alarm in case of fire without the intervention of any human agency. To this end counsel for plaintiff began a line of inquiry addressed to a witness, Razbold, a fire safety engineer, with these questions:
"Are you familiar now with the type of apparatus that was available in this area, particularly Freehold, New Jersey, and in and around here as to automatic fire alarm signals?"
"Do you know as a fact whether or not an individual on or about June 1, 1951 could have procured by purchase an automatic fire signal, fire alarm signal?"
Defense counsel objected to both questions and counsel for plaintiff explained:
"I am trying to show, may it please the Court, by this witness, that there was available on the market an inexpensive, effective fire apparatus."
"Well, it calls for all kinds of conclusions, counselor. I think you must argue the situation at an appropriate time and not through the witness."
Counsel then persisted on another tack attempting to get the witness to identify some literature or ...