dissenting.
I respectfully dissent from the decision and opinion of the majority in this case. I do so for two reasons, viz., (1) the plaintiff’s evidence failed to establish the violation of any duty owed to her and (2) there is no evidence from which the jury could find that failure of the defendant to have the handrail required by the city code was a proximate cause of the plaintiff’s injury.
The mere fact that the defendants had not installed a handrail running from top to bottom and in the center of the stairway, as required by the Memphis City Code, does not establish that the defendants violated any duty owed to the plaintiff in the circumstances of this case. In De Haen v. Rockwood Sprinkler Co. of Massachusetts, 258 N.Y. 350, 179 N.E. 764, 766 (1932) the great Cardozo, writing for the court, said:
“Liability is not established by a showing that, as chance would have it, a statutory *765safeguard might have avoided the particular hazard out of which an accident ensued. The hazard out of which the accident ensued must have been the particular hazard or class of hazards that the statutory safeguard, in the thought and purpose of the Legislature, was intended to correct.”
Applying that rule to this case, it appears to me that the purpose of the Memphis ordinance was to protect the safety of persons who purposely go up or down the steps of the stairway. I cannot believe that it was intended to protect the safety of one who “. . . simply lost her balance when she turned from talking with an employee of the restaurant . . moved to her right, intending to re-enter the back door.”1 See Prosser on Torts, Hornbook Series, at 271 (1st ed., 1941).
In a case which is quite similar to the case at bar, Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948), the Kentucky court denied liability to a patron of the hotel who, while descending a stairway of the hotel, was accidentally struck from behind by another person who fell on the stairway, thereby knocking the plaintiff’s feet out from under her and causing her to fall and suffer injuries. The theory of the plaintiff was that the defendant was negligent because it had failed to erect a guardrail up and down the center of the stairway as required by an ordinance of the City of Louisville. In denying a recovery to the plaintiff, the court said:
“It is argued by appellant that the purpose of the ordinance was limited to the protection of persons in going from the building in case of fire. We cannot agree with appellant in this argument. Obviously the purpose of the ordinance was for the safety of persons using the steps either in ingress or egress.
“But we can agree with appellant in that the particular thing that happened here was most likely not within the zone of apprehension of the ordinance. If the violation of an ordinance calling for a prescribed safeguard does not necessarily establish liability, it will be much more so if the ordinance is intended only to protect against hazards entirely different in kind to the occasion of the injury. It follows then that where a statutory command is not obeyed there is no breach of duty toward those who do not come within the zone of apprehended danger.” (Emphasis added.) 209 S.W.2d at 71, 72.
Actually, the plaintiff in the Kentucky case came far closer to falling within the class of persons intended to be protected by the ordinance than does the plaintiff in the instant case because, in the Kentucky case, the plaintiff was actually descending the stairway when injured, whereas, the plaintiff at bar was making no attempt to go either up or down the stairs when injured. “In the absence of any other guide, a statute may well be assumed to cover all risks that may reasonably be anticipated as likely to follow from the violation.” Prosser on Torts, supra.
Although the defendants violated their legal duty as citizens of the City of Memphis in failing to comply with the requirement of the code that a handrail be erected from top to bottom of the stairway in question, it is my view that before the violation of that ordinance may properly be held to be a breach of duty to a particular person in a tort action it must be shown that such person is one of those whom the ordinance was intended to protect, i. e., one who was purposely ascending or descending the stairway.
Although my principal disagreement with the majority is on the point just discussed, it is my further opinion that the evidence in this case fails to show that the absence of a handrail running from top to bottom of the middle of this stairway was a proximate cause of the plaintiff’s injury. Her testimony is that she “cartwheeled” down the steps and landed on the ground on her feet thereby injuring both ankles. If this be true, I am unable to see that a handrail erected in the fashion required by the Memphis City Code would have been of any assistance to *766her. Handrails running down the center of a stairway are designed for holding onto by one who is ascending or descending a stairway, not to protect people from falling off porches.
I would reverse the judgment of the Court of Appeals and affirm that of the trial court.
. Excerpt from plaintiffs complaint.