Rudolph v. Tubbs

GIBSON, C. J.

This action was brought to recover damages for the destruction by fire of stock, fixtures and personal property contained in a building, the larger portion of which plaintiff occupied as lessee for store and residence purposes. Defendant Ehrhorn was the lessee of a gasoline filling station located on the premises and adjacent to the main building.

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Defendant Langford operated the service station under a sublease from Ehrhorn, and defendant Tubbs was an employee of Ehrhorn. After trial before a jury, a general verdict for damages was returned against Ehrhorn and Tubbs but not against Langford. Ehrhorn and Tubbs moved for a new trial, and, after denial of this motion, they appealed from the judgment, contending that the evidence was insufficient to support it.

In determining whether the evidence is sufficient we must, of course, view it in the light most favorable to plaintiff. The filling‘ station, insofar as pertinent here, consisted of several gasoline pumps immediately to the south of the building occupied by plaintiff, an office located in the southwest corner of the building, and a lean-to, called the “oil room,” attached to the west wall of the building. The wall between the oil room and the building was wooden, with cracks between the boards, and the other walls of the room were of corrugated iron. The floor of this room was either dirt or macadam, and there is evidence that it was not clean. An automatically operated air compressor, driven by an electric motor and used in connection with the filling station, was located just outside the north wall of the room. Access to the oil room was through a doorway about 6 to 8 feet across located at the front, i. e., the south end of the room. At the northeast corner of the room, within a few inches of the wooden wall, was a 50-gallon drum lying horizontally on a frame rack. The drum was in this position when Langford took possession of the station from Ehrhorn about three months before the fire.

On the morning of the fire defendant Tubbs, acting in the course of his employment by Ehrhorn, delivered white gasoline (a gasoline which does not contain tetraethyl lead) to the station in a truck, which he parked about 3 or 4 feet from the oil room. The truck was equipped with a hose for the purpose of delivering gasoline. Tubbs detached the nozzle end of the hose from the truck and, while holding the nozzle and unreeling the hose, walked a distance of about 25 feet to the rear portion of the oil room, where he unscrewed the cap of a “bunghole” at the top side of the drum and poured 40 gallons of white gasoline through the opening. He testified that he then replaced the cap but screwed it on only “a thread or so” and walked back to the truck with the nozzle in his hand, put the nozzle in its keeper and reeled in the hose; that it took not over a minute and a half to pour in the