Staley, Van Dusen and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
This appeal is from a judgment entered on a jury verdict for the defendants, Clayton A. Stafford and Blanche Stafford, appellees in this court, in a diversity action brought in the district of Delaware. Appellant, plaintiff in the district court, sued for damages as a result of the tragic death of Yameen Hassan on April 23, 1969, while he was a paying guest in a commercial motel operated by appellees in New Castle County, Delaware.
A cigarette dropped in a first floor room at appellees' motel caused a fire in the morning hours of April 23, 1969, between 1:45 A.M. and 2:00 A.M. The guest who started the fire escaped from his room, but fell on the ground outside the building and gave no alarm. Clayton Stafford, notified of the fire about 2:00 A.M., immediately called the fire company and, with others, attempted to evacuate the guests from the motel. All the motel guests except the decedent had already been evacuated when the fire company arrived at approximately 2:10 A.M. The firemen mounted a ladder and after considerable difficulty removed decedent from his second floor room. By about 2:15 A.M. decedent was on his way to a hospital where he was admitted at 2:30 A.M. He subsequently died on April 29, 1969, from second and third degree burns sustained in the fire.
At the pretrial conference, appellant alleged that appellees were negligent in failing to provide fire doors, fire extinguishers, an internal warning system and in failing to notify decedent in time to permit him to vacate the premises. The allegation as to the fire extinguishers was withdrawn during the trial. Following a two-day trial to a jury, a verdict was returned specifically finding the defendants were "not negligent."
Appellant has appealed to this court from an order denying motions for new trial and for judgment notwithstanding the verdict. He alleges error also in certain rulings of the trial judge: (1) excluding from the jury evidence of safety regulations adopted by the Fire Protection Commission of Delaware; (2) permitting cross-examination of Deputy Fire Marshal Lynch, appellant's witness, as to the foregoing safety regulations, after barring them from evidence; (3) denying plaintiff the opportunity to examine the Deputy Fire Marshal as to building inspection procedures of his office; and (4) instructing the jury not to consider the arguments of plaintiff's counsel concerning the absence of a night attendant and ladders at the motel at the time of the fire. We find no error in the rulings of the trial judge and therefore affirm.
Delaware has enacted a fire prevention and safety code, 16 Del.Code § 6603, that provides for the creation of a Fire Prevention Commission with authority to promulgate safety regulations applicable to new installations or to existing installations if the Commission finds that they constitute a hazard.*fn1 The Commission adopted the National Fire Protection Association 101 Life Safety Code as its regulations in 1965. The regulations as applied to motels required that: (1) an alarm system constructed in accordance with other provisions of the regulations "shall be provided for any hotel having accommodations for 15 or more guests except where each guest room has direct exit to the outside of the building;" and (2) every stairway, elevator shaft, and other vertical opening shall be enclosed or protected by fireproof doors constructed in accordance with other provisions of the regulations. Appellees' motel, however, had been constructed about thirty years before the promulgation of the regulations, and the State Fire Commission had never inspected it nor found that its continuation in its existing condition constituted "a hazard so inimicable to the public welfare and safety as to require correction." Therefore, the regulations did not apply to appellees' motel at the time of the fire. At trial, plaintiff's counsel offered to introduce the regulations as evidence of the proper standard of care to be observed by appellees. The district court ruled they were inadmissible.
We find no reversible error in this ruling for three reasons: (1) appellant's trial counsel acquiesced in the ruling; (2) appellant was not prejudiced by the ruling; and (3) no preexisting Third Circuit rule renders such regulations admissible.
Very early in the direct examination of Lynch, plaintiff's counsel attempted to have him testify as to the contents of the regulations. At that point, defendant's counsel objected, and a lengthy discussion of the applicable law was held out of the hearing of the jury. During that discussion plaintiff's counsel initially indicated that he desired to introduce the regulations as a legal standard, the violation of which would be negligence per se. After the court ruled against him, plaintiff's counsel then requested that the regulations be admitted merely as evidence of negligence. Upon continuation of this discussion the next day, plaintiff's counsel acquiesced in the trial court ruling that the Safety Code could not be introduced as independent evidence but that plaintiff's expert would be permitted to testify that his opinion was based on the Safety Code.*fn2 Not having objected to that ruling, plaintiff is not permitted to raise this issue on appeal. See Kuzma v. United States Rubber Co., 323 F.2d 657, 658 (3rd Cir. 1963); Curko v. William Spencer & Son, Corp., 294 F.2d 410, 413-414 (2d Cir. 1961).
If appellant had properly objected to the court's ruling, we would nevertheless find that he was not harmed by the exclusion. Lynch, after being properly qualified by the appellant, expressed an opinion on direct examination as to the insufficiency of the fire devices in the motel. He stated unequivocally:
It would be my opinion that the building did not comply with current standards of recognized fire protection features for an occupancy of that type.
He explained that the stairwells were not enclosed and that "they should have fire doors at the top and the bottom to prevent the vertical spread of any fire, smoke or heat or gases from one floor to another. . . ." Another specific inadequacy, in his view, was the lack of an internal alarm system. On cross-examination, he stated that he based his opinion as to current standards on his own personal experience and training, and on national standards, including the National Fire Protection Association Life Safety Code. He also testified that Delaware law, embodied in regulations of his office and of the Building Inspector's office, requires that fire doors and an internal warning system be installed in motel structures built today.*fn3 The jury did hear the substance of the regulations, and in our view the testimony actually adduced was as effective, or possibly more effective, than merely reading the cold regulations.
Finally, in ascertaining whether the trial court erred in his ruling, our first inquiry must be what evidentiary law should have been applied. ...