Shafer v. Lacock, Hawthorn & Co. , 168 Pa. 497 ( 1895 )

Opinion by

Mr. Justice McCollum,

If the destruction of the plaintiff’s property was the direct result of the negligence of the defendants’ servants in the performance of the work their employers had undertaken to do for him this judgment must stand, unless it plainly appears that the court below erred in its rulings on offers of evidence or in its instructions to the jury. It is contended in support of the appeal that the declarations of the workmen, made while the fire was in progress, to the effect that it was caused by their carelessness, were not admissible to charge their employers with liability for the consequences of it. We think this contention is sufficiently answered by the decisions of this court in Hanover Railroad Co. v. Coyle, 55 Pa. 396; Tompkins v. Saltmarsh, 14 S. & R. 275; Elkins v. McKean, 79 Pa. 493, and Penna. Railroad Co. v. Lyons, 129 Pa. 113. We accordingly overrule the first, second, and third specifications of error. As the evidence complained of in the fourth specification was received in rebuttal, and manifestly for the purpose of contradicting the defendants’ principal witness in a material matter, it was clearly relevant and its admission afforded no ground for reversing the judgment. The proposition that if the defendants furnished a proper fire pot and competent and careful workmen they are not responsible to the plaintiff for the loss he sustained through the negligence of their servants is not applicable to the case. The relation between the parties is not that of master and servant and the duties which the former owes to the latter need no consideration in the decision of the questions involved in this issue. For these reasons the fourth and fifth specifications are overruled.

There are cases in which a fair presumption or inference of negligence arises from the circumstances under which the injury occurred, and this we think is one of them. The defendants by their servants were in possession of the roof of the plaintiff’s house and engaged in repairing it. For the purposes of their work they had a fire pot there, and it is established "by the verdict that the fire which destroyed his property was caused by a spark or sparks from it. The workmen, while the fire was in progress, acknowledged that it was so caused, but on the trial they set up in the interest of their employers, a theory respecting the origin of it which was discredited by their previous declarations, and other testimony, and was rejected by the jury. It was a theory born long after the fire and opposed to their observation at the time of it. It was speculative and conjectural and it was justly condemned. The defendants by their servants were in exclusive possession of the roof, and the destruction of the property was due to fire brought there by them, and under their control. The occurrence was not in the ordinary course of things, and the circumstances connected with and surrounding it put on them the duty of showing that it was at least consistent with the exercise of proper care in the performance of their work. If it was capable of an explanation which repelled an inference that it resulted from their negligence, they could and ought to have made it because they were in a position to do so, while from the nature of the case it was not in the power of the plaintiff to show expressly in what manner their work was performed or the cause of the escape from the fire pot of the sparks by means of which his house was burned. In Sherman and Redfield on Negligence, secs. 59 and 60, the rule applicable to the case is thus stated : “ The accident, the injury and the circumstances under which they occurred are in some cases sufficient to raise a presumption of negligence and thus cast on the defendant the burden of establishing his freedom from fault. When the thing which causes the injury is shown to be under the management of the defendants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from a want of care.” See also on this point Thompson on Negligence, 1227-1235, Cooley on Torts, 706, and 16 Am. & Eng. Ency. of Law, 448, and cases there cited. In the light of the evidence and the principles applicable to it we cannot convict the learned court below of error in the instructions. We therefore overrule the sixth and seventh specifications.

Judgment affirmed.