Ritchie v. Thomas

• Decision Date: 28 November 1950
• Citation: 224 P.2d 543,190 Or. 95
• Parties: RITCHIE v. THOMAS et al.
• Court: Oregon Supreme Court

Page 543

224 P.2d 543

190 Or. 95

RITCHIE v. THOMAS et al.

Supreme Court of Oregon.

Nov. 28, 1950.

J. Ray Rhoten, of Salem, argued the cause for appellant. On the brief were Rhoten & Rhoten, and Sam F. Speerstra, all of Salem.

Asa L. Lewelling, of Salem, argued the cause and filed a brief for respondents Ed Thomas and Sarah Marie Thomas.

Laing, Gray & Smith, Henry S. Gray, and John R. Becker, all of Portland, on the brief for respondent Portland Gas & Coke Co.

Before BRAND, Acting Chief Justice, and BAILEY, HAY, LATOURETTE and WARNER, JJ.

BRAND, Acting Chief Justice.

This is an action for damages on account of injuries to the plaintiff allegedly caused by the escape of gas fumes from heating equipment installed in a motel room owned by the defendants Thomas and rented to the plaintiff for one night. The action was originally brought against the defendants Thomas and against the Portland Gas and Coke Company, hereafter called the Gas Company, but a demurrer to the complaint was sustained as to the Gas Company and the plaintiff refused to plead further. The case against the defendants Thomas, hereafter called the defendants, went to trial before a jury and resulted in a verdict for the defendants. Judgment was accordingly rendered for the defendants on the verdict and judgment of dismissal entered as to the Gas Company. The plaintiff appeals from both judgments. As to the Gas Company, the only question relates to the sufficiency of the complaint. As to the defendants, the only issues raised by assignments of error relate to the giving of certain instructions and the refusal to give others. The complaint alleges ownership by the defendants of the motel, the corporate capacity of the Gas Company, and the rental of a room by defendants to plaintiff. The complaint continues as follows:

'IV.

'At said time said room was equipped with a gas heater and fixtures and that defendant Portland Gas & Coke Co. furnished to defendants Thomas, gas for said heater and maintained the same and defendants did not properly maintain conduct or keep in repair such equipment and/or gas line.

'V.

'That during the night of November 20, 1946 or the morning of November 21, 1946, the plaintiff was by gas fumes from said heater or from the pipes leading to the same, asphyxiated and poisoned in his lungs and his left foot was, by reason thereof, severely burned.

'VI.

'That on account of such asphyxiation, plaintiff was burned and his lungs injured, all to plaintiff's general damage in the sum of $15,000.00.'

The defendants admit that they were the owners and operators of the motel and that they rented a room to the plaintiff. The other allegations are denied. As an affirmative defense defendants allege that any illness suffered by plaintiff was caused by his negligence in the following particulars:

'(a) Plaintiff failed and neglected to ventilate said room;

'(b) Plaintiff failed and neglected to provide for a circulation of air in said room;

'(c) Plaintiff failed and neglected to provide for the admission of new oxygen in said room during the night;

'(d) Plaintiff failed and neglected to turn off said floor furnace before retiring;

'(e) Plaintiff failed and neglected to open any windows in said room during the night time to provide ventilation and further restricted ventilation by plugging the crack under the single door with a bathmat;

'(f) Plaintiff failed and neglected to take ordinary or any care or precaution for his own safety.'

The evidence shows that the plaintiff rented from the defendants a room having dimensions about 18X15 feet, on the evening of November 20, 1946. At about 10 o'clock P. M. the plaintiff, Grover Ritchie and his wife and the plaintiff's brother, Jay Ritchie, and his wife Bertha, occupied the premises and immediately retired. Before retiring they turned off the heat which was furnished by a Coleman floor furnace. The plaintiff was awake at 2 A. M. and the room was cold. There is evidence that the bathroom window was open. At about 4 A. M. plaintiff's brother, Jay Ritchie, turned the furnace on. The furnace had a double control by means of an electric switch and also a thermostat which automatically would control the temperature. At about 5 A. M. plaintiff's wife awoke, felt ill, and fainted in the bathroom. The plaintiff went to her aid and also fainted. At about 11 A. M. the defendant Ed Thomas went to the room and found all four occupants in bad condition. Apparently all four had been unconscious. The plaintiff had lain upon the floor with his feet on the floor furnace and had been seriously burned. The first aid squad and a doctor were called. Dr. Fisher stated:

'A. I ran a test on Mr. and Mrs. Jay Ritchie and found it was positive for carbon monoxide. This was after they were admitted to the hospital.

'Q. The same day? A. The same day; within a matter of an hour.'

No test was made on the plaintiff. Aside from such inferences or presumptions as may have arisen from the evidence which shows what happened to the plaintiff and his companions under the circumstances narrated, there is not a scintilla of evidence directly tending to show that there was any defect in any part of the heating equipment at the time in question. There is evidence from which the jury might have concluded that the plaintiff or some member of his party was negligent. That evidence is to the effect that at 11 A. M. the defendant Ed Thomas found the room hot; all windows closed; the thermostat turned to its extreme height, to or above 80 degrees, with a floor rug which appeared to have been close to or against the door, and which was pushed back upon the opening of the door. In behalf of the defendants there was expert testimony that the furnace was in perfect condition, both before and after the injury. The plaintiff bases his theory as to the right of recovery on the doctrine of res ipsa loquitur. In that connection it should be noted that the plaintiff called the defendant Ed Thomas as a witness and that he testified as follows:

'Q. In other words, you were exclusively controlling the motel? A. Yes, that is right * * *.

'Q. No one else had any control out there, except you? A. That is right.'

This appears to be uncontested.

By his first assignment it is asserted that the court erred in failing to give the following instruction which was requested by the plaintiff: 'If you find that plaintiff was injured and that such was due to the condition of the equipment and/or gas line and that defendants Thomas had exclusive control of the premises, then there is a presumption that the defendants Thomas are negligent and if there is any explanation of the accident consistent with the freedom from negligence defendants Thomas ought to be able to give that explanation and if they do not give it, a presumption arises against them.'

The exception taken was as follows: 'Plaintiff excepts to the Court's failure to give plaintiff's requested instruction Number 1 on the ground and for the reason that the evidence in this case and the pleadings in this case are such that plaintiff is entitled to the instruction that the presumption would be that the defendants were negligent under the facts of this case and that plaintiff should be entitled to the instruction under the theory of res ipsa loquitur.'

The second assignment is to the effect that the court erred in failing to give plaintiff's requested instruction Number 2 which was as follows: 'If you should find that the plaintiff sustained injury in the manner alleged in the complaint and on account of the alleged condition which existed on the premises at the time the plaintiff occupied the same, then your verdict should be for the plaintiff in such sum as you may assess, unless you find from the evidence that the defendants were not negligent or if they were negligent that their negligence did not proximately cause the accident, in which event your verdict should be for the defendants.'

The exception was taken 'on the same grounds' as those specified concerning requested instruction Number 1.

By his third assignment the plaintiff asserts that the court erred in giving the following instructions:

'I instruct you that negligence is not presumed, and the fact alone that injuries resulted does not of itself establish that either plaintiff or defendants were negligent.

'Now if you find from a preponderance of the evidence that plaintiff received injury from the gas fumes from the heater in the cabin rented from defendants or from the pipes leading to the same, and you also further find from a preponderance of the evidence that such injury proximately resulted from the negligence of defendants Thomas in failing to properly maintain, conduct or keep in repair such gas heater or gas line, then you will return your verdict for plaintiff.

'If you do not find from a preponderance of the evidence that defendants Thomas were negligent in failing to properly maintain, conduct or keep in repair said gas heater or gas line, then you will return your verdict for defendants.'

The trial court gave the following instructions:

'Negligence as used in this case is the failure to do that which a reasonable prudent person would have done under the circumstances, or the doing of something which an ordinarily prudent person would not have done under the circumstances.

* * *

* * *

'If you find that the gas floor furnace in defendants' cabin #18 was in good working order and was not giving off carbon monoxide fumes immediately prior to the accident here in question, you cannot hold defendants liable for the escape of carbon monoxide fumes from said furnace, if you find that carbon monoxide did so escape, unless you further find that defendants had notice of the escape of carbon monoxide fumes from said furnace and failed to exercise the care of an ordinarily prudent person in repairing said furnace after that notice or unless you find that an ordinarily prudent person would have...