Stewart v. DeNoon , 220 Pa. 154 ( 1908 )

Opinion by

Mr. Justice Brown,

At the time the appellees sustained the loss which is the subject of this litigation they were wholesale boot and shoe dealers in the city of Pittsburg, and appellants were engaged in the wholesale paint and glass business. They occupied adjoining parts of a building, separated by a thin terra cotta partition. Appellees’ part was known as Fo. 917 Liberty street, and appellants’ as 919. The fire which caused the destruction of appellees’ goods occurred about one o’clock on the morning of July 29, 1902, and is alleged in the statement to have resulted from an explosion due to appellants’ negligence in storing and handling paints, oils, varnishes, benzine, turpentine and other substances, and in negligently maintaining a fire in a furnace under a boiler in close proximity to these inflammable and explosive materials. The defendants Avent into court to meet the charge that an explosion resulting from their negligence had caused the fire. Summoned to answer this specific charge of negligence, they were not required, in arranging their defense, to prepare to meet another. It was sufficient for them to come into court prepared to show that an explosion had not taken place as the result of their negligence. If the negligence charged against them had been established by evidence offered on the part of the plaintiffs, the burden would have been upon them to show that they had not been so negligent, but Avhen the plaintiffs themselves proved that the fire had not resulted from the explosion, but that the explosion had followed the fire by at least a half hour, the defendants were not called upon to prove anything. The case against them, as set out in the statement, had not only not been proved, but was disproved by the plaintiffs, and, when they rested with unamended pleadings, the right of the defendants was to a nonsuit, instead of being forced to go on and make defense to a charge they had not been called upon to answer. “ Allegations and proofs must still correspond. The wise and reasonable requirement that a plaintiff must correctly and accurately set forth the material grounds of his complaint has, with us, withstood the reforming hand of the modern pleader, and the defendant yet knows that he need answer only what is charged against him: ” Wilkinson Manufacturing Co. v. Welde, 196 Pa. 508.

As long as the case of plaintiffs was being presented the defendants could not know that it would not be made out as pleaded, and only when plaintiffs rested was it knoAvn that it had not been so made out, and a nonsuit was promptly asked for, “ for the reason that the plaintiffs have not given any evidence of the negligence alleged in the declaration or statement. The evidence does not show that the fire originated from an explosion in the cellar.” Plaintiffs made no offer to amend their statement. If it had been amended the case would have been continued on defendants’ motion, if they were surprised, to a subsequent term, and in the interval they would have had an opportunity to prepare to meet the new charge of negligence against them. But we need not discuss this further, for even if the statement should be regarded as having been amended, charging the fire as the direct result of the negligence of the defendants, there is nothing in the evidence from which the jury could have determined how it originated.

It was incumbent upon the plaintiffs to show not only that the fire had started in the cellar, but that it resulted from some negligent act of the defendants. The jury were so properly instructed. They were told that unless they found that the fire had originated in the cellar, their verdict should be in favor of the defendants without further consideration of the case, but that if they should find that it did originate there, and resulted from the negligence or want of proper- care on the part of the defendants, the plaintiffs were entitled to recover.

There was sufficient proof for a finding that the fire started in the cellar, but none that it started in that part in which it must have started if the theory of the plaintiffs as to its cause was correct. No direct or positive evidence was offered as to its cause, and the plaintiffs were not required to furnish that kind of proof. In a case like the present it rarely can be furnished, but they were required to submit, in lieu of it, circumstantial evidence from which, if not satisfactorily explained by the defendants, the jury could reasonably conclude that the fire was due to their negligence. That the defendants were careless in allowing the drippings of oil, varnish and other inflammable materials to accumulate in sawdust on the cellar floor was fairly found by the jury, but the only testimony from which they could have found that the fire resulted from this carelessness was that of an expert chemist called by the plaintiffs. With his testimony eliminated there was not a piece of evidence in the case from which the jury could have found what caused the fire. What he said was but a theory as to its origin. His testimony is as follows : “ Q. Assuming it to be true that oil, turpentine and varnish were allowed to collect upon the floor of a cellar and, mixed with sawdust from time to time, permitted to remain there for. some considerable time without being fully cleaned iip and removed, would such a state of facts be likely to result in spontaneous combustion? A. I would say yes. Q. Would such-a state of facts as you heard described by the witnesses in this case, where there was a fire in the- cellar or live coal tmder the boiler, such as described by the witnesses — would that likely result in fire ? A. I would say yes.”

The inflammable condition of the cellar was confined to the front part of it. The dripping oils and the saturated sawdust did not extend to the boiler or fire under it. Plaintiffs’ own witnesses so testified, one of them stating that the barrels or tanks of oil were kept in the front end of the cellar, the one nearest to the boiler being twenty-five feet from it, and yet the fire must have started in the front part of the cellar, between Liberty street and some feet from the boiler, if the expert’s theory was correct. After the fire was over the plaintiffs had access to the building, and one of them went through it frequently, making investigations. Neither he nor any other witness called by them testified that there had been any fire in the front part of the cellar, though there was much testimony as to where it had burned in other portions of the building. On the theory, upon which alone the plaintiffs would be entitled to recover, that the fire had been caused by the inflammable condition of the front part of the cellar, it was clearly incumbent upon them to show that there had been fire there, but this they failed to do, and when the case went to the jury it was under undisputed and uncontroverted evidence offered by the defendants that there had been no fire in the front part of the cellar. The evidence was that there was no indication of fire‘in that part of the cellar; that the nearest point to Liberty street where there was any indication of fire was at the other end of the boiler, next to the alley; that not a particle of the cellar had been burned back to the boiler, and an insurance adjuster stated that the stock in the front part of the cellar was absolutely intact, except that it was dirty and splashed with water ; that the empty barrels were intact, and the. tanks which contained the drying oils and varnishes were also intact.

The theory of the plaintiffs as to the origin of the fire vanished utterly in the light of undisputed facts, and with its disappearance there was nothing before the jury from which they could have found how the conflagration started. The defendants are liable only if their negligence caused it, but until its cause is known or fairly found from the evidence it cannot be said to be due to their negligence. The only conclusion to be reached from a review of all the evidence is that no one can tell how the fire started, and the finding of the jury that it was due to defendants’ negligence must be regarded as a mere guess. If the loss to the plaintiffs was due to the negligence of the defendants, it is their misfortune that they were not able to so prove; on the other hand, if it was not due to the negligence of the defendants, it is well that the law will not permit them to be made liable for the consequences of a mere guess that it was. The first assignment of error is sustained, the judgment is reversed and judgment is now entered for defendants.