Don PENA, Administrator of the Estate of Frankie Pena, and Don Pena and Esther M. Pena, husband and wife, Appellants,
W. R. STEWART and Mae B. Stewart, his wife, and The Phoenix Title & Trust Company, a corporation, and Centrial Arizona Light & Power Company, now known as Arizona Public Service Company, a corporation, Appellees.
[78 Ariz. 274] W. Roy Tribble, Chandler, and John Vanlandingham, Theodore G. McKesson, Phoenix, for appellants.
Johnson & Shelley, Mesa, for appellees Stewart.
Moore & Romley and Anthony T. Deddens, Phoenix, for appellee Title Co.
Snell & Wilmer, Phoenix, for appellee Utility Co.
This is an appeal from a judgment entered on a directed verdict at the close of [78 Ariz. 275] plaintiffs' case in favor of all the abovenamed
defendants on the ground that plaintiffs had failed to present a prima facie case of negligence against any of said defendants. Plaintiffs by appropriate assignments of error, supported by several propositions of law, challenge the correctness of the court's evaluation of the evidence and its ruling that they had failed to submit sufficient proof to entitle them to have the cause submitted to the jury for its determination of the issues.
Admittedly questions of negligence and contributory negligence are for the courts only when the facts are undisputed and lead but to one conclusion. Further it is fundamental that motions for directed verdicts are regarded as admitting the truth of whatever competent evidence the opposing party has introduced including the reasonable inferences to be drawn therefrom. Accordingly it is the duty of this court on appeal, in this situation, to view the evidence in a light most favorable to plaintiffs. Nichols v. City of Hoenix, 68 Ariz. 124, 202 P.2d 201; Moore v. Southwestern Sash & Door Co., 71 Ariz. 418, 228 P.2d 993; Bassett v. Ryan, 72 Ariz. 383, 236 P.2d 458.
The evidence offered by plaintiffs in support of their action may be summarized as follows: Paintiffs rented a certain house or cabin at Lemon's Court located in Chandler, Arizona, from Mr. and Mrs. Lindley who were duly authorized agents of the owners, W. R. Stewart and Mae B. Stewart, his wife,-defendants herein-at a rental of $4 per week or $15 per month. An initial payment of $4 was made at the time they moved in on October 16, 1950. The rooms were approximately nine feet by twelve feet and the interior partitions were mostly cardboard paper with some black tar paper around the walls. There were four outside doors, one in each of the front rooms. These doors were of half wood and half screen construction. The screen on one of the front-room doors had been covered with a blanket. Three open doorways connected the rooms inside. One witness-a former tenant-said it was commonly referred to as 'the rag house'.
The landlord had partly furnished the cabin by leaving a cot and a kerosene stove therein. This stove was located in one of the front rooms near a doorway leading into the other front room. According to Mrs. Pena the stove had never operated properly during the short time they occupied the cabin. Sometimes it would not light at all and on other occasions it would keep burning after it was turned off and 'sometimes the flame would burn way up high'. A gas pipe outlet came through the north wall of the other front room and a plug had been driven into the end of this pipe. The service line, which had been installed by and belonged to the landlord, ran from the cabin across to the meter attached to the natural gas line owned by defendant The Central Arizona Light and Power Company.
[78 Ariz. 276] On October 16, 1950, when the Pena family first occupied the cabin, Mrs. Pena smelled gas which came from the north side of the room where the gas pipe was located and she advised Mrs. Lindley of this fact. What then ensued will be more fully developed later in the opinion. It does appear however that Mr. Lindley then made an examination but found no evidence of leaking gas. Nonetheless, Mrs. Evelyn Davis, a prior tenant who had moved out the day before Penas moved in, testified that while she had not used natural gas in the house she had been constantly annoyed for the two and a half months she lived there by the obnoxious odor of gas in this particular room, but she admitted she had never mentioned this fact to the Lindleys.
On October 20, 1950, around noontime, Mrs. Pena was ironing in the kitchen about two or three feet from the kerosene stove. This stove was fed from a one-half gallon glass jar or bottle containing kerosene. She had it the stove just four or five minutes previously and the two front doors were then closed. Mrs. Pena testified she had just sent her small son Frankie, aged two and one-half years, into the back bedroom where her brother was, when suddenly
'* * * I raised my hands up in front of my face like that and my arms, and there was a fire that hit me, and I went out this door (front door) and I fell because there was a little platform I missed, I missed the steps, a little platform, I fell on my knees and
I fainted. When I got up I said 'God save our baby,' that is all I could do. * * *'
An explosive report was heard after the flash fire had started. The cabin was quickly enveloped in flames and razed to the ground. Their minor son Frankie was burned to death while Mrs. Pena received first degree burns on her face and second degree burns on her hands and forearm. This injury caused her great pain and suffering and she incurred doctor and hospital bills for treatments received.
A tort action for damages in the sum of $25,000 was filed. The pleadings were subsequently amended and the utility company made a party defendant. The case went to trial on plaintiff's second amended complaint after the issues had been framed by the filing of separate answers on the part of each of the defendants. As heretofore stated, at the close of plaintiffs' case the court instructed a verdict for all of the defendants, judgment was entered thereon and this appeal followed. Of necessity the liability, if any, of the three sets of defendants must be separately determined and a more detailed statement of the issues as to each will be later stated, coupled with some additional facts.
Case Against the Stewarts
The theory on which the plaintiff seek to hold defendants Stewart, as stated [78 Ariz. 277] in their complaint, is that defendants, having been given notice of facts from which they might infer that the gas pipe was defective, were negligent in failing to repair the defects despite a promise so to do. They also claim the aid of the doctrine of res ipsa loquitur to supply a basis on which the jury might find negligence, ...