Primmer v. C. C. Harris Oil Co.

JAMES, J.

Plaintiff, a minor, by her guardian, prosecuted this action against defendant corporation, claiming damages for personal injuries alleged to have been suffered by reason of negligent act of the defendant. Verdict in her favor was returned by the jury and judgment thereafter entered accordingly. This appeal, taken from the judgment so entered, followed.

At the time of the accident which resulted in the injuries complained of, plaintiff was sleeping in a small house located at the rear of a main dwelling on a lot in the city of Los Angeles. The whole of the ground was not of great extent, being of average city lot dimensions. Upon a portion of the lot were located two oil wells, which were operated by the defendant corporation under a lease from the owner of the lot, Mrs. Cummins, who was the grandmother of the plaintiff. A few feet distant from the small dwelling in which the child was sleeping was an oil storage tank belonging to appellant. This tank was elevated above the surface of the ground about eighteen feet and stood upon timbers which were imbedded in the earth. On the night in question it was discovered that the tank was overflowing and members of the plaintiff’s family were awakened. In a very short while, however, the tank collapsed upon its foundations and demolished, in part at least, the bnilding in which the child was sleeping, burying the child under the debris, from which she was extricated with difficulty in a serionsly injured condition. There was ample evidence to show that the supporting foundation timbers, under the stilts upon which the tank was standing, were decayed and

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in an unstable condition. There seems to be no real dispute as to the jury having had ample evidence of a competent kind to warrant the conclusion that defendant had not exercised ordinary care in protecting persons to whom it owed that duty from the possibility of injury from the collapsing of the tank. We will therefore give no further attention to that feature of the case.

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Plaintiff was occupying the house with her mother and as a part of the family of the owner of the lot. The question arises in the' case as to what the character of the occupancy was, that is, whether plaintiff and her mother were on the property as of their own right or as mere licensees of defendant corporation. In the latter case it is argued, and we think properly, that the rule of ordinary care which the trial judge imposed upon the defendant by his instructions to the jury would not apply. On the other hand, if it was sufficiently shown that the owner had not, by the leasing of the premises, deprived herself of the right to occupy for dwelling purposes that portion where the rear house was situated, then the instructions of the court were correct and the judgment right, unless there is merit in other questions suggested in the brief of appellant. We think that the trial judge correctly concluded as a matter of law that, under the terms of the lease by which the defendant corporation held the property from Mrs. Cummins, the right of the owner to make such use of the same as would not interfere with the operation of the two oil wells by appellant, was not taken away. The lease itself, which was introduced in evidence, after describing the portion of the premises let, proceeded with this language: “and so much of that part of said lot lying south thereof as shall be necessary for the purpose of operating the two oil wells situated on said lot ninety-six. . . . And it is further understood and agreed that the second party’s rights apply only to the operating of the two wells as hereinbefore mentioned (no other well being permitted on said lot No. 96).” The main dwelling-house to which we have referred was mentioned in the lease, but it seems to be conceded that that house was not upon the portion of the lot described in the lease. However, in corroboration of the idea that there was reserved to the owner of the lot all rights of use, except such as might interfere with the practicable operation