#### W. L. PATRICK v. A. A. SPRINGS.

(Filed 1 March, 1911.)

1. Public Inns — Hotels—Guests—Invitation—Negligence.

A liotol keeper, from the nature of Ills occupation, extends an invitation to all who come on his premises; and though not an insurer of the guest’s personal safety, he is responsible in damages for injuries received by the guest from being placed in an unsafe or unsanitary room.

2. Same — Contributory Negligence — Evidence—Questions for Jury.

In this ease there was evidence tending to show that the plaintiff, a guest at defendant’s hotel, was shown into a bedroom wherein there was a defective gas fixture by which a light was furnished to the occupant, by reason of not having a safety-pin to prevent the turning of the key all the way around, and that the gas fixture was not safe in consequence; that before retiring for the night the plaintiff discovered the absence of this safety-pin, but turned the key to where it should have stopped, and could smell no gas escaping, and thereupon he retired, but was injured by asphyxiation that night when asleep: Held, a motion to nonsuit was properly denied, there being evidence of *271defendant's negligence; and it was for the jury to say wlietlier. according to tlie rule of the prudent man, the plaintiff was guilty of such contributory negligence as would bar his recovery.

Appeau from Ward, J., at July Special Term, 1910, of Hyde.

Tbe action was brought to recover damages of defendant Springs, tbe keeper of a hotel in Washington, N. C., for damages suffered by plaintiff by reason of having been assigned to an unsanitary room in .which was an unsafe and leaky gas fixture.

The usual issues were submitted of negligence, contributory negligence,, and damage. The jury answered first issue “Yes,” the second “No,” and assessed plaintiff’s damage at $250. The court rendered judgment for plaintiff, and defendant appealed.

W. M. Bond for plaintiff.

Small, McLean & McMtillan for defendant.

Brown, J.

The record discloses that this action was brought by the plaintiff to recover damages suffered by reason of being-asphyxiated while plaintiff was a guest in defendant’s hotel in Washington, N. C. The testimony shows that plaintiff and companion were assigned by defendant’s clerk to a room in defendant’s hotel. The evidence of plaintiff tends to prove that he resided in Hyde County and was visiting Washington and stopped at defendant’s hotel with his companion, one Mann. They were assigned to a room and went to bed about 11 o’clock at night. The hotel was lighted by gas, and the plaintiff’s room had a gas burner with no stop or safety-pin in it, so that the key was loose and could be turned all way around. Defendant’s witness, Martin, testifies he examined fixture next morning, having been called in to fix it. He says the safety-pin was out, and that with the pin out it would not be safe.

Plaintiff testifies that he turned out gas carefully and discovered that there, was no stop-pin, and that he turned the key at place where it should stop and that he could smell no gas. Then he went to bed. During night he woke up and found Mann crawling over him. The room was full of gas. He says *272he was asphyxiated, but managed to reach the door and called for help. Plaintiff testifies that he has not recovered from the effects. There are no exceptions to evidence. The motion to nonsuit was properly denied.

There has been considerable discussion by judges and text-writers as to the liability of an innkeeper for personal injuries sustained by a guest. Cases are to be found where the innkeeper has been held liable for assaults by servants, and cases contra.. But it seems now to be well settled that in case of an injury occurring in consequence of the unsanitary and defective condition of the inn premises, or room to which a guest is assigned, the innkeeper is liable upon the same principles applicable in other cases where persons come on the premises at the invitation of the owner or occupant and are injured in consequence of their dangerous condition.

The innkeeper is not an insurer of his guests’ personal safety, but his liability does extend to injuries received by the guests from being placed in an unsafe room. This is a matter peculiarly within the innkeeper’s knowledge and entirely beyond the control of the guest. In that particular he is peculiarly within the innkeeper’s power and protection. Ten Brock v. Wells, 47 Fed., 670; West v. Thomas, 97 Ala., 622; Stanley v. Bircher, 78 Mo., 245; 16 Am. and Eng., 547; Sandys v. Florence, 47 L. J. C. Pl., 598; 22 Cyc., 1081.

. This is not only the settled law of this country, but is held by the courts of Great Britain.

One who keeps a public house extends an invitation to all to come on his premises, and is therefore liable for injuries sustained in consequence of the bad condition of his inn premises. Oxford v. Prior, 14 W. R., 611. This principle is applied in cases of warehousemen, common carriers, and the like. Finch v. R. R., 151 N. C., 106; Fetter on Carriers, 228. When the plaintiff proved the unsafe and defective condition of the gas fixture, in consequence of which gas escaped during the night and injured him, he made out a prima facie, case of negligence, which it was defendant’s duty to answer.

The learned counsel for defendant, Mr. McMullan, in a well considered argument, insists that the plaintiff is guilty of con-*273tributary negligence upon bis own evidence, and for that reason tbe motion to nonsuit should bave been sustained. We are not prepared to go that far under tbe circumstances in wbicb plaintiff was placed.

It is undoubtedly true that if tbe defect is an obvious one, tbe guest must use reasonable care on bis part, and if be is himself negligent and could have avoided tbe injury by due care, be cannot recover. 22 Cyc., 1081, and cases cited.

There are circumstances when tbe court can declare as matter of law whether a person has exercised reasonable care, but there are conditions when tbe question can only be solved by adopting tbe rule of tbe prudent man and submitting tbe matter to tbe jury. "We think, under tbe conditions surrounding-plaintiff, it cannot be fairly held that be necessarily failed to exercise due care as a matter of law. He fixed tbe key, as be thought, safely so as to cut off tbe gas. Smelling none, be retired and went to sleep. Tbe gas may bave escaped through tbe loose key during tbe night by reason of continued pressure, tbe key not being firm enough in place to bold it.

"We think tbe question one peculiarly for tbe jury under such circumstances, and that it was fairly presented by tbe court to them.

We find no. err or in tbe charge of wbicb tbe defendant can justly complain.

No error.