dissenting: Plaintiff’s intestate, a young man 32 years of age, was a capable and experienced filling station man, and at the time of his death was employed at Allen’s Service Station, in the town of Garner. On the night of 29 September, 1928, plaintiff’s intestate was at the filling station, on duty, and while he was lying or reclining on a cushion in the filling station, a customer of the station and another employee were looking for some article that had fallen on the floor about 3 or 4 o’clock on Saturday morning, 29 September, 1928. A match was struck by the other employee, there was a blue flame, followed by a terrific explosion that wrecked the filling station and caused the immediate death of plaintiff’s intestate.
Suit was brought against B. R. Poole, as the owner of the station, D. Henry Allen, as lessee and operator of the filling station, and Standard Oil Company of New Jersey, as the admitted owner of the tanks, pumps and equipment. It was alleged in the complaint and admitted in the answer of the defendant, Standard Oil Company, that it owned the tanks and pumps at the filling station, installed the same, and from time to time inspected the same. Evidence was offered on the part of plaintiff showing that a few days prior to the explosion there was an accumulation of as much as five inches of water and gasoline in the basement of the filling station, and that the fumes arising therefrom were so strong as to overcome a workman who went into the basement to install some piping or wiring. There was further evidence that while this condition had been improved by a drainage ditch, there was still a strong presence of fumes at the filling station on the night of the explosion, and immediately prior to the explosion.
There was evidence tending to show that the plaintiff’s intestate had been drinking on the night of the explosion, and also evidence to the contrary. Plaintiff offered evidence showing that one White, lessee of the filling station prior to the tenancy of defendant, Allen, discovered the strong presence of fumes near the big gasoline tank while making installation of a small tank nearby; also1 that said White discovered in the operation of the filling station a loss of at least ten gallons of gas a day from the big tank on account of a leak or seepage; that he brought this to the attention of the representative of the Standard Oil Company, and that this representative came out and sealed the tank for the purpose of making a check, and that under such test it showed a loss of at least three inches in twelve hours. This was some six months before the explosion.
The evidence showed that the ground sloped from the direction of the big tank, owned and installed by defendant, Standard Oil Company, in the direction of the basement of the filling station. It was the contention of the plaintiff that the big tank had some sort of leak and that *291from tbis leak there was a seepage of gasoline wbicb found its way to the basement of the filling station, resulting in the accumulation of gas and fumes with the consequent explosion causing the death of plaintiff's intestate.
Plaintiff offered in- evidence certain paragraphs of the complaint, together with answers of the defendant, Standard Oil Company. From these portions of the pleadings offered in evidence the following will appear to be undisputed:
(a) That the pumps and tanks and equipment in connection therewith at said filling station, were owned by the defendant, Standard Oil Company;
(b) That said tanks, pumps and equipment were installed by the defendant, Standard Oil Company;
(c) That the said defendant from time to time examined and inspected the said equipment for the purpose of seeing if the same was being properly used and in good condition.
From these admissions and facts of the case, it is manifest that if there was any negligence with respect to the condition of the said tanks at the time of the installation thereof, or in connection with the installation itself, or in connection with the inspection of said tanks, such negligence was the negligence of the defendant, Standard Oil Company. Nobody else had the duty or the right to do anything with reference to remedying any condition or defect in said equipment.
In addition to the responsibility resting upon the defendant, Standard Oil Company, arising out of its ownership, installation and inspection duty with reference to said tanks and equipment, there were the following facts and circumstances offered in evidence by the plaintiff as affecting the liability of defendant, Standard Oil Company:
The testimony of witness A. A. White was to the -effect that he.operated the filling station for a period of twelve months prior to the time defendant, Allen, operated the same, his tenancy terminating just a few months prior to the explosion; that the big gasoline tank was in use at the station at the time of his tenancy; and that he bought his gasoline from the Standard Oil Company; that while he was using the station a smaller tank was put in at the station at the eastern end of the big tank, by the Standard Oil Company; that while the hole was being dug for the installation of this smaller tank and after getting four or five feet down into the ground, the presence of gasoline fumes were detected; that during his operation of the filling station, he experienced a loss of gasoline and checked up closely on the big tank and found that it was checking short to the extent of ten gallons per day, and that it continued to check short until the time that he gave up the station; that he called this to the attention of the representative of the Standard Oil Com*292pany; that this representative came out and sealed the tank for the purpose of making ‘a check, and that after this was done the tank showed a loss of about three inches in twelve hours. This tank held 1,000 gallons of gasoline.
It was contended by plaintiff that this was sufficient evidence to go to the jury on the question of whether or not there was some leak or defect in the big tank owned, installed and inspected by the defendant, Standard Oil Company. Not only was there evidence of defect, but direct evidence that such defect was brought to the attention of said defendant. No evidence was offered tending to show that the defendant did anything whatever to remedy such defect or to prevent the leakage and seepage of gasoline from this tank.
There was evidence offered by the plaintiff that the big gasoline tank was directly in front of the filling station, and that the big tank was about twenty feet from the basement of the filling station, and that the ground sloped from the direction of the big tank toward the basement of the filling station.
There was testimony that for a considerable time previous to Wednesday (prior to the explosion early Saturday morning, 3 or 4 o'clock) the weather had been dry, but that on Wednesday and for the next day or two, there was an exceptionally heavy rain.
There was undisputed 'testimony to the effect that on Wednesday prior to the explosion on the following early Saturday morning, there was a strong odor of gasoline from the basement of the filling station and that when the trap door to the basement was opened, it was found that there were several inches of water and gasoline in the basement; that a milk bottle was let down into the basement and drawn up two-thirds full with at least three-fourths of an inch of gasoline in the bottle, and that when the contents of the bottle were poured on the ground and a match struck, it ignited and burned, and that when an employee undertook to go down into the basement he was nearly overcome with the fumes, and had to be pulled out.
There was also evidence by the plaintiff that while a ditch was dug on Thursday to let the gasoline and water out from the basement, the fumes never did leave the basement up to the time of the explosion. The ditch caved in Friday morning and the drain stopped.
The testimony of witness, Arch Wood, was to the effect that on the night of the explosion and immediately previous to the explosion, when he came up to the station, there was a strong and noticeable odor of gas fumes, so much so that he called out to plaintiff’s intestate to know if he was not stifling from the fumes; that when a match was struck by Marvin Wall, who was in charge of the station, while looking for a key, there was a bluish flame that run around the cracks on the floor of *293the station, followed by a terrific explosion that wrecked the filling station and caused the death of plaintiff’s intestate.
The plaintiff contends that the foregoing circumstances clearly and strongly supported by the evidence, were such that the jury was justified in concluding that there was a leak in the big tank due either to a defect in the tank or defective installation, or defective inspection and to the failure of the defendant, Standard Oil Company, to do anything with respect thereto after it had been brought to its notice, and that such leakage amounted to as much as ten gallons per day; and that this amount of gasoline saturated the earth toward the bottom of the big tank to such an extent that there was a seepage in the direction of the basement of the filling station, this being the direction of the natural slope of the land; that such seepage was accelerated by the heavy rainfall immediately preceding the explosion, and that the presence of a large quantity of gasoline and water in the basement of the filling station and the consequent oppressive and dangerous fumes therefrom were due to said seepage from the tank, and that the presence of such fumes and the accumulation thereof in the basement of the filling station caused the explosion resulting directly in the destruction of the filling station and the immediate death of plaintiff’s intestate.
No other explanation was offered or reason given for the presence of such an accumulation of gasoline and water in the basement, and the evidence, I think, was sufficient to go to the jury on the question of whether or not this condition resulted from the negligence of the defendant, Standard Oil Company, in respect to the said tank equipment, and the further question as to whether such negligence was the proximate cause of the death of the plaintiff’s intestate.
Sherman and Eedfield on Negligence, sec. 58: “If facts proven render it probable that the defendant violated his duty, it is for the jury to decide. To hold otherwise would deny the value of circumstantial evidence. In the nature of his ease the plaintiff must labor under difficulties. The proof of negligence, and that fact is always a relative one, is susceptible of proof by evidence or circumstances bearing on the fact of negligence.”
I think there was no error in the refusal of the court to allow the motion for nonsuit upon the contention that the plaintiff’s intestate was as a matter of law guilty of contributory negligence.
If it may be conceded that there was evidence of contributory negligence on the part of the plaintiff’s intestate, but this evidence was sharply disputed and this issue was, therefore, properly left for determination by the jury.
There was evidence that plaintiff’s intestate was an experienced and capable filling station employee, and that on the night of the explosion *294be was engaged in tbe performance of bis regular duties, and tbat while be was lying down at tbe time of tbe explosion, there were two employees of tbe station at tbe time, and tbat it was tbe custom and practice of tbe employees for one of them to lie down while tbe other worked, and tbat for this purpose there was an automobile cushion and blankets located on tbe lower part of tbe tire-rack on one side of tbe filling station; tbat while defendant, Allen, did not furnish any cushions or blankets, and did not authorize or permit tbe employees to sleep while on duty, be was down at tbe filling station every day, and there was no evidence tbat be ever objected to tbe presence of tbe cushions or blankets with their manifest indication for tbe purpose for which they were used.
Likewise with respect to tbe question of whether or not tbe plaintiff’s intestate was under tbe influence of liquor on tbe night of tbe explosion. There was evidence from which tbe jury might have concluded tbat tbe plaintiff’s intestate was drinking, and likewise evidence equally strong to tbe effect tbat be was in no sense under tbe influence of liquor on tbe night in question. Assuming tbat tbe question of plaintiff’s intestate’s drinking, if be bad been drinking, entered into tbe question of contributory negligence, this was a matter in sharp dispute and was certainly a question for tbe jury to decide.
It is contended by tbe defendant on tbe question of contributory negligence tbat tbe negligence of plaintiff’s intestate in failing to get out of tbe station after tbe match was struck and before tbe actual explosion, was tbe proximate cause of bis death; tbat be bad ample time to get out without injury, and tbat if be bad not been lying down or asleep or intoxicated, be could easily have gotten out without injury. This, of course, was a legitimate matter for argument on tbe part of tbe defendant, but it could not be said from tbe evidence, tbat tbe plaintiff’s intestate was, as a matter of law, guilty of contributory negligence. Tbe witness Wood got out of tbe filling station, it is true, but only after be bad been blown to tbe ceiling, and then stepped out tbe front door, which bad been blown out by tbe force of tbe explosion. It is also true tbat employee Wall got out of tbe filling station after tbe explosion, but tbe evidence discloses tbat be was on fire when be came out, and only narrowly escaped with bis life.
As to whether tbe plaintiff’s intestate bad an opportunity to' get out, tbe evidence discloses tbat tbe blue flames which sprang up when tbe match was struck, came through tbe floor all around tbe sides, and tbat be was lying near tbe side of tbe building when bis body was found after tbe explosion, and it was on tbe cushion, and tbat be bad not turned over, and tbat bis face was up. Tbe evidence discloses tbat bis *295life was snuffed out by tbe fumes and tbe explosion, witb no opportunity on bis part to make a move toward escape.
I tbink there was sufficient evidence to be submitted to tbe jury on tbe issues. Tbe jury bave found tbe issues in favor of plaintiff and tbe judgment rendered tbereon in favor of plaintiff. Tbe verdict and judgment should not be disturbed.
Stacy, O. J., concurs in dissent.