Martello v. Beletich ( 1922 )

I concur. [2] Even if the trial court's findings should be construed as meaning that defendants' sole negligence lay in their violation of the city ordinance, nevertheless plaintiff's knowledge that defendants were violating this police measure would not be a defense to the action. The duty imposed upon defendants by the ordinance to keep their automobile elsewhere than in a part of the rooming-house was not a contractual obligation. It was an obligation imposed upon defendants by a salutary police regulation. The doctrine of the assumption of the risk does not apply. Public policy forbids that the duty which defendants owed to plaintiff to keep their automobile out of the rooming-house should be waived by plaintiff's mere passive quiescence, even though with knowledge of the infraction of the ordinance. In Adams v. Cumberland Inn Co.,117 Tenn. 470 [101 S.W. 428], it was held that one who continues to occupy a room in a hotel for six months with knowledge that there are no fire-escapes on the building as required by ordinance does not thereby waive a compliance with the ordinance. The doctrine is there stated as follows: "The plaintiff did not waive the duty which the defendant owed to him under the ordinance as an occupant of the hotel, nor assume the risks incident to its occupation in its then condition. The duty of the defendant to place the fire-escapes upon its hotel was not a contractual obligation, and the doctrine of assumed risks has no application to this case. The ordinance is a police regulation, made for the protection of human life, and in the interest of that portion of the public occupying hotels and lodging-houses. Public policy requires that duties of this kind be discharged, and that all consequences of a failure to do so shall follow. The individuals who are affected cannot suspend the law by waiver or express contract."