dissenting:
Plaintiff states that the case was tried and decided on the charge that the absence of handrails was the proximate cause of her injuries. Defendant maintains that the handrail ordinance is not retroactive and does not apply to the premises of the defendant. The handrail ordinance upon which the plaintiff relies was adopted by the City Council on December 30, 1949. The church was constructed in 1896. The stairs on the 66th Street side thereof were constructed in the same year. There were no handrails on the steps at any time. The rule is well established that legislative acts operate in the future only and are not to be given a retrospective effect if susceptible of any other construction. An intention that a statute or ordinance shall have a retrospective operation is not to be presumed but must be manifested by clear and unequivocal language, and in case of doubt the statute or ordinance must be construed to have a prospective effect only. Barrett Mfg. Co. v. Chicago, 259 Ill. 578; Reitman v. Village of River Forest, 9 Ill.2d 448, 451; City of Nameoki v. Granite City, 408 Ill. 33, 37; People ex rel. Manczak v. Carpentier, 3 Ill.2d 556, 558; People v. Hummel, 215 Ill. 43. The rules for the construction of an ordinance are the same as those which govern the construction of a statute. In People v. Capo, 393 Ill. 342, the court said (344): “It is well-established law of this State that the presumption is that a statute is intended to operate prospectively only, and that it will not be construed to have retroactive operation unless the language employed is so clear that it will admit of no other construction.”
The handrail ordinance upon which plaintiff rests her case appears in Chapter 67 of the Municipal Code under the heading “Exit Requirements.” Section 67-10.3 entitled “Handrails” provides that “(a) All stairways shall have walls, railings or guards on both sides and shall have handrails on both sides except as follows: (1) Stairs less than forty-four inches wide may have a handrail on one side only. (2) Intermediate handrails, continuous between landings, shall be provided where required to provide a lateral distance between handrails not exceeding eighty-eight inches.” The foregoing is preceded by Section 67-1 entitled “General Provisions” which reads: “Every building or structure or part thereof, hereafter erected shall comply with the requirements of this chapter pertaining to exits. When there are special requirements as provided in chapters 52 to 61, inclusive, for specific occupancies which differ from the general requirements of this chapter, such special requirements shall take precedence.” [Italics ours.] The requirements of this chapter, which include the handrail requirements, apply to buildings, structures or parts thereof “hereafter” erected. No ordinance having to do with special requirements as provided in chapters 52 to 61, inclusive, were called to the attention of this or the trial court. We conclude that the “special requirements” mentioned in the last quoted section do not change the application of the first sentence of the section. Plaintiff proceeds on the theory that the provisions of chapter 78 of the Municipal Code set forth clear and unequivocally an intention to make the handrail provision retroactive. Chapter 78 defines an “existing building” as a “building, structure or part thereof which has been completed and ready for occupancy” and defines a pre-ordinance building as “every existing building, structure or part thereof which was completed or for the construction of which a permit was issued prior to the effective date of this ordinance.” An “existing building” includes both pre-ordinance buildings and buildings built subsequent to the enactment of the ordinance.
It is to be noted that section 78-1 provides that every existing building shall comply with the requirements of the chapter. Section 78-3 clearly expresses an intention to have the code requirements in effect at the time of the construction or alteration of the building apply. Chapter 78-3 reads: “General Requirements. (a) Maintenance Required. Every existing building shall be so kept and maintained, in conformity with the applicable provisions of this code, as to eliminate conditions hazardous to the public health and safety, (b) Application of Provisions. Every existing building shall comply with the code requirements in force and applicable to such building at the time of its construction or alteration and shall also comply with such provisions of this code which are specifically made applicable to existing buildings.” Section 78-5 reads: “Exit Requirements. Existing buildings shall comply with all applicable exit requirements of this Code and with the special provisions of Sections 78-5.1 to 78-5.3, inclusive.” A reading of sections 78-5.1 to 78-5.3, inclusive, shows that none of them refer to handrails. Had the City Council intended to include handrails, such an intention would have been expressed. Reading all the ordinances it is to be noted that the only clear expression in chapter 78 with reference to the application of the provisions therein is set forth in section 78-3, providing that every building shall comply with the code requirements in force and applicable to such building at the time of its construction or alteration. This means that the ordinance in effect at the time of the construction of defendant’s building in 1896 apply. There is no evidence that the stairs had been altered since that time.
Section 78-5 provides in substance that existing buildings shall comply with all applicable exit requirements. This means that according to section 78-3 (b) the code requirements in force at the time of the construction or alteration of such building shall apply. The building having been constructed in 1896, the code requirements, if any, in effect at that time, apply. The code does not express an intention to have section 67-10.3, the handrail ordinance, apply to buildings or structures constructed prior to the effective date of the ordinance of December 30, 1949. The first paragraph of the handrail ordinance provides that every building “hereafter” erected shall comply with the requirements of the chapter pertaining to exits. This precedes the handrail ordinance in the same chapter. The intent therein expressed is to have the handrail ordinance act prospectively. The words in section 78-5 that “existing buildings shall comply with all applicable exit requirements,” when read in conjunction with section 78-3 (b) that every “existing building shall comply with the code requirements in force and applicable to such building at the time of its construction or alteration,” show an intention to have the exit requirements applicable to a building at the time of its construction apply to existing buildings. This means that the handrail ordinance would apply to all buildings constructed since the ordinance was enacted but it does not indicate an intent to have it apply to pre-ordinance buildings. The term “existing buildings” means buildings erected prior to the effective date of the code and subsequent to the effective date of the code. The last of the special provisions under section 78-5.3 provides that: “All exit areas shall be lighted as required in section 67-17.” This special provision would not have been necessitated if section 78-5 made chapter 67 retroactive. On the same reasoning, it would not have been necessary to enact section 78-5.1 (a) and (b) and section 78-5.2 (a), (b) and (c). There are no words in either chapter indicating an intention that the ordinance have retroactive effect. The intention is clearly expressed in both chapters that the handrail ordinance have prospective effect only.
In her argument that the handrail ordinance is applicable to all existing buildings, including the church premises, plaintiff relies heavily upon the recent case of Chicago v. L. J. Sheridan & Co., Inc., 18 Ill.App.2d 57. That opinion called attention to the fact that section 78-4 of the ordinance provides that existing buildings shall comply with all applicable fire protection requirements of the code as well as with further requirements therein enumerated. We said that by this language all applicable fire-protection requirements are specifically made applicable to existing buildings and these included the provisions of chapters 90, 91 and 92 of the code. The decision in the Sheridan case does not aid the plaintiff. The cases of De Wolf v. Marshall Field & Co., 201 Ill. App. 542; Doran v. Boston Store, 307 Ill. App. 456; and O’Donnell v. Barach, 1 Ill.App.2d 157, are of no help to the plaintiff. In each of these cases as in the Sheridan case there was an intent expressed to have the ordinance apply retroactively.
I am of the opinion that the trial court erred in giving plaintiff’s instruction No. 5. This was a peremptory instruction in that it directed a verdict for the plaintiff. In Hanson v. Trust Company of Chicago, 380 Ill. 194, the court said (197):
“It is well established that the law applicable to different questions may be stated i i separate instructions and that the entire law applicable to all the questions involved in the case need not be stated in each. In such cases, they supplement each other and if they fairly present.the law of tire case when considered as a series, it is deemed sufficient. But the rule is different where an instruction directs a verdict for either party or amounts to such a direction, then in such case it must necessarily contain all the facts which will authorize the verdict directed, [citing cases] When a peremptory instruction omits a fact or circumstance essential to recovery, the law is that such error in the instruction cannot be cured by any other instruction in the series of instructions,”
The most flagrant error in the instruction is that it informs the jury that the defendant is guilty of negligence if the jury find that the defendant failed to comply “with said ordinance.” The instruction ignores the rule stated in many cases that the violation of an ordinance is only prima facie evidence of negligence. Tuttle v. Checker Taxi Co., 274 Ill. App. 525; Jeneary v. Chicago and Interurban Traction Co., 306 Ill. 392; United States Brewing Co. v. Stoltenberg, 211 Ill. 531. Whether or not the violation of an ordinance constitutes negligence is a question for the jury. The instruction informed the jury that failure to comply with the ordinance makes the defendant guilty of negligence and this in effect directed a verdict for the plaintiff. The instruction is also prolix in that it quotes many ordinances. It also refers to ordinances that are not quoted. The jury are told by the instruction that failure to comply with the unquoted ordinances is negligence, and are left to conjecture as to the provisions of the unquoted ordinances.
Under the language of section 78-3 (b) the code requirements in force at the time of the construction of the church and stairs apply. I do not know whether there were any code requirements for handrails on the defendant’s premises at the time the stairs were constructed, or whether any such requirements would be applicable to the factual situation. The cause should be remanded to give the plaintiff an opportunity to consider whether an application should be made under the liberal provisions of section 46 [Ill. Rev. Stats, ch. 110] of the Civil Practice Act to amend her complaint and for a new trial. As the matter stands she has no case.