Lang v. Henderson , 211 S.W.2d 972 ( 1948 )

The statement in the majority opinion by Mr. Bond, Chief Justice, is ample for an understanding of the nature of the case. I am in accord with the majority in saying "The fire was caused by ignition of escaping gas from defective condition of the water heater; and, we think, the evidence introduced by appellant would have entitled appellant to submission of issues on the question of the landlord's negligence in failing to safely repair the heater or provide another heater safe and sufficient for the joint use of all the apartments, to avoid incurring injuries."

However, I respectfully dissent from the holding of the majority to the effect that under all the facts and circumstances appellant was guilty of contributory negligence as a matter of law and that the trial court did not err in directing the verdict in favor of appellee.

In the first place, I do not think the contributory negligence imputed to appellant in the majority opinion finds any basis in the pleading. The plea of contributory negligence seems to have been based altogether on the alleged failure of the appellant to discharge certain duties incumbent upon him; the plea in its entirety reading as follows: "That the plaintiff was guilty of contributory negligence in the following respects: (1) Plaintiff failed to inspect said water heater. (2) Plaintiff failed to have said water heater repaired. (3) Plaintiff attempted to repair said water heater himself knowing that he was unskilled in such matters, and repaired such heater in an improper manner. (4) Plaintiff failed to keep said water heater in a safe state of repair when he knew that same was operating in a defective condition. (5) Plaintiff failed to keep said water heater free from escaping gas. (6) Plaintiff failed to exercise ordinary care to discover that said water heater was operating in a safe condition. (7) Plaintiff failed to turn off the gas, knowing that the water heater was operating in a defective condition. (8) Plaintiff failed to report to the owner of the building that said heater was defective. Each of the acts of negligence above alleged was a direct and proximate cause of the fire and the alleged damages to plaintiff's property and plaintiff's wife, and such acts contributed to said fire and said damages."

The record fails to disclose any evidence showing that it was appellant's duty to do either of the things he is charged with having failed to do. Certainly he was not authorized to turn the gas off and thus deprive the tenants in the other units of the building. Besides, the evidence shows that appellant repeatedly reported to the owner of the building the defect in the heater.

The majority, in my opinion, did not convict appellant under either of the counts in the plea of contributory negligence as heretofore set out, and as the contributory negligence plead by appellee was not sustained by evidence, I think the majority erred in holding as it did that appellant was guilty as a matter of law.

But even if the plea of contributory negligence was sufficient to admit the evidence quoted in the opinion and acted upon by the majority in reaching their conclusion, yet I am of opinion that the evidence raised an issue of fact that should have been submitted to the jury. Appellant and wife were young people, he was discharged from the Armed Services of the Government about the time his wife rented the premises in question, February 1, 1946; had entered Southern Methodist University, gave half time to his student duties, the other half to an employment he had obtained. About six weeks before the fire, he and wife began to smell the fumes of escaping gas, which continued during the period mentioned, becoming probably more offensive and intense immediately preceding the fire.

The majority opinion cites Pollack v. Perry, Tex.Com.App., 235 S.W. 541 and Baermann v. Bradix, Tex. Civ. App. 5 S.W.2d 869, and applied the rule of law announced in those cases to the instant case, concluding that appellant was guilty of contributory negligence as a matter of law. Those cases, in my opinion, are only remotely in point; there is a radical difference in the facts. The two cases cited are practically identical; each was an action for damages by a tenant against the landlord to recover for injuries resulting from rotten planks in the floor of the rented premises. In those cases the tenant continued to use the premises, although the existence of the defect in the floor was well known and had been known to exist for some time; was in no sense hidden or mysterious, but perfectly open and obvious. Not so, however, in regard to the instant case. It is true that escaping gas was detected for at least six weeks or two months before the fire, but appellant is not suing for damages resulting from being subjected to the odors of escaping gas, but is asking damages resulting from a fire occurring at about 2:30 A. M., from gas that, obviously, had escaped and was confined in such volume as to become ignited in some manner not disclosed by the record. I do not think it can be reasonably or correctly said that a fire such as occurred resulting from escaping gas, was as probable as injury from the continued use of a defective floor, the existence of which being well known to the party injured.

Gas is a fluid, invisible, shapeless, and behaves somewhat mysteriously, as was said of the wind on a memorable occasion, that "The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth."

In order to justly and fairly appraise appellant's conduct, I think, as nearly as possible, we should place ourselves in his shoes and look with open eyes upon the situation as he was compelled to do. Under the facts and circumstances, should appellant, in the exercise of reasonable care for the safety of himself and wife, have visualized that what did happen would likely happen and that he was guilty of contributory negligence as a matter of law by remaining on the premises? Or rather should it not be said that he was reasonably prudent in what he did and, in view of the housing shortage, the condition of his wife — advanced six months in pregnancy, and the late December weather outside, was justified in remaining on the premises, bearing the ills he had, rather than flying to those he knew not of? This situation, in my opinion, presented essentially a question of fact and not of law.

Again, I think that a question of fact was raised which should have gone to the jury for decision, as the record discloses that after appellant began to smell escaping gas, from six weeks to two months before the fire, he immediately and repeatedly notified his landlord, the appellee, of the fact and she usually said she would give it attention or would look after it; and on one occasion, becoming impatient with her failure to have the leak repaired, appellant called the gas company and it sent a man down who cut the gas off. When appellee found out this fact, she mildly rebuked appellant, saying "You kids have certainly fixed me." And then it seems she undertook to repair the defect herself. Can it be said that this was not the exercise of some care by appellant for the safety of himself and wife? I do not think so. And if it was the exercise of any degree of care, a question of fact was presented for the jury. We had that identical question before us in the case of Henwood v. Gilliam, Tex. Civ. App. 207 S.W.2d 904 (writ refused.) We held that where the evidence showed plaintiff had knowledge of or was chargeable with knowledge of the danger, but exercised some care, contributory negligence was a question of fact for the jury. In applying this rule, it should be borne in mind that the law does not prescribe any particular acts or omissions as constituting ordinary care, or its absence. Some may think that appellant should have notified the landlord oftener, or should have done something else, but the question for the jury would remain; that is, whether in what he did do he acted as a reasonably prudent person would have done under the same or similar circumstances. In the case mentioned, authorities were cited at length on the subject and will be found in the opinion on rehearing, 207 S.W.2d at pages 910, 911.

For the reasons heretofore set out, I think the trial court erred in taking the case from the jury and instructing a verdict, that the majority erred in holding that appellant was guilty of contributory negligence and that the trial court did not err in instructing a verdict and rendering judgment for the appellee. I am of opinion, therefore, that appellant's motion for rehearing should be granted, the judgment of this Court set aside, and that the case should be reversed and remanded to the trial court for further proceedings.