Rushing v. . Texas Company

CONNOR, J". On its appeal to tbis Court, tbe defendant, tbe Texas Company, relies chiefly on its contention tbat there was error in tbe refusal of the trial court to allow its motion, at tbe close of all tbe evidence, for judgment as of nonsuit, dismissing tbe action as to said defendant. Tbis contention cannot be sustained if there was evidence at tbe trial tending to show tbat plaintiff was injured, as alleged in bis complaint, by an explosion of gas vapors which bad accumulated in tbe rest room, which be bad entered as a customer of tbe filling station; and tbat said gas vapors bad accumulated in said rest room as the result of tbe negligence of tbe defendant as alleged in tbe complaint. If there was such evidence, there was no error in tbe denial of defendant’s motion, unless upon all tbe evidence, plaintiff by bis own negligence, as alleged in tbe defendant’s answer, contributed to bis injuries, and is therefore barred of recovery in tbis action. There is no serious contention on tbe part of tbe defendant tbat plaintiff was not injured by an explosion of gas vapors which bad accumulated in tbe rest room, as alleged in tbe complaint; nor is there any serious contention tbat there was no evidence tending to show tbat said gas vapors bad entered said rest room by means of' tbe vent pipe which was enclosed when tbe rest room was constructed. It is admitted tbat tbe vent pipe was constructed for tbe purpose of permitting gas vapors which arose from tbe gasoline in tbe tank, to escape from tbe tank into tbe open air. Upon all tbe evidence, it was negligence to so construct tbe rest room tbat tbe vent pipe discharged tbe gas vapors which arose from time to time from tbe gasoline stored in tbe tank', into tbe rest room, and not into tbe open air. The rest room was constructed after tbe owner of tbe filling station bad leased it to tbe defendant, tbe Texas Company, and after tbe said defendant bad put tbe operator of tbe filling station in possession of tbe premises, and of tbe fixtures, equipment and facilities which said defendant owned and furnished to tbe said operator, by virtue of tbe terms of tbe license agreement. There was evidence tending to show tbat tbe rest room was constructed by tbe owner of tbe filling station, at tbe request of and in *177 accordance with plans prepared and approved by the defendant, the Texas Company. The question, therefore, presented for decision is whether there was evidence tending to show that the defendant, the Texas Company, negligently constructed the rest room, and is therefore, in the absence of contributory negligence on the part of the plaintiff, liable for the damages which resulted to him from his injuries. The relationship between the defendant, the Texas Company, and the operator of the filling station, with respect to the premises, and the fixtures, equipment and facilities thereon, at the date of the construction of the rest room, was not that of landlord and tenant; it was that of licensor and licensee. The decisions of this Court and of courts of other jurisdictions, cited and relied upon by the defendant in its brief filed in this Court, with respect to the liability of a landlord to a third person for damages resulting from injuries caused by the defective condition of the premises, while in possession of the tenant, have no application in the instant case. Ordinarily, the tenant alone is liable for such damages, for the reason that during the term of the lease he is entitled to the exclusive possession and control of the premises. In the instant case, however, the operator of the filling station, in possession not as tenant, but as licensee, had no right to make any addition, alteration or substitution on the premises or in the fixtures, equipment or ■facilities, put in his possession by the defendant, the Texas Company, not as landlord, but as licensor. The said defendant alone had the right to make additions, alterations and substitutions. This right was expressly reserved by the defendant in the license agreement. As the defendant, the Texas Company, alone had the right to have the rest room constructed, while the operator of the filling station was in possession of the premises, it alone is liable for damages resulting to plaintiff from its negligent construction. It cannot be held as a matter of law that plaintiff was negligent when he went into the rest room with a lighted cigar, or that he was negligent, upon the facts which the evidence tended to show, in going into the rest, room, which was designed for the use of ladies. There was evidence tending to show that he and other men, customers of the filling station, had frequently used this rest room, upon the invitation or with the consent of the operator of the filling station, and that plaintiff often smoked while in the rest room. There was no error in the refusal of the trial court to dismiss the action, on the motion of defendant, at the close of all the evidence. Nor was there error in the instructions of the court to the jury to which defendant excepted and which it assigned as error on this appeal. The judgment is therefore affirmed. No error.