Grand Island Grain Co. v. Roush Mobile Home Sales, Inc.

• Decision Date: 19 March 1968
• Docket Number: No. 18800.,18800.
• Citation: 391 F.2d 35
• Parties: GRAND ISLAND GRAIN COMPANY, Inc., Appellant, v. ROUSH MOBILE HOME SALES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

391 F.2d 35 (1968)

GRAND ISLAND GRAIN COMPANY, Inc., Appellant, v. ROUSH MOBILE HOME SALES, INC., Appellee.

No. 18800.

United States Court of Appeals Eighth Circuit.

March 19, 1968.

Gordon H. Miles, of Haney, Walsh & Walentine, Omaha, Neb., for appellant.

L. J. Tierney, of Cassem, Tierney, Adams & Henatsch, Omaha, Neb., for appellee, Howard E. Tracy, of Luebs, Tracy & Huebner, Grand Island, Neb., on the brief.

Before VOGEL, Chief Judge, and MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

On February 15, 1963, at the municipal airport at Grand Island, Nebraska, a destructive fire occurred in a hangar leased by Grand Island Grain Company and used by it for the storage of wheat. The grain company instituted this diversity suit against Roush Mobile Home Sales, Inc., alleging that Roush was negligent and that its negligence caused the fire. At the conclusion of the plaintiff's case Chief Judge Robinson sustained Roush's motion, under Civil Rule 50(a), for a directed verdict. Judgment was entered accordingly. The grain company appeals.

The general facts are not in dispute. In the fall of 1962 the United States Air Force arranged to rent a trailer and to use it at the airport as an operations headquarters office. It employed Roush to move the trailer there. Roush placed it south of the hangar, near the southeast corner, about 190 feet away and facing north. The Air Force then employed an electrician named Fuller to supply electricity to the trailer. He accomplished this by running a cable from the trailer to an outlet inside the hangar. The grain company gave permission for this connection.

Just before Christmas 1962 the Air Force discontinued its use of the trailer. The vehicle, however, was not then removed. It remained where it was until the day of the fire. Roush was engaged to take it away that day. It did so. A well-advanced fire appeared in the hangar a short time, perhaps a half hour, after the trailer was moved.

No question is raised as to the substantial amount of the damage sustained by the grain company in the fire.

The plaintiff's theory is that Roush was negligent in failing, before the move, to disconnect the cable running from the trailer to the hangar; that, when the trailer was moved, the cable was pulled out and a short circuit resulted; and that this caused the fire. Defendant Roush's position is that the removal of the trailer had nothing to do with the fire and that the cable had been disconnected before-hand. It asserts that the ultimate question is not how or when the fire started but whether electricity was connected to the trailer when it was moved.

With the trial court's granting the defendant's motion for a directed verdict at the conclusion of the plaintiff's case, and with this ruling vigorously challenged here, we must look at the testimony of each primary witness for the plaintiff in some detail:

Howard E. Fuller: He is a licensed electrician. He connected cable (No. 12 Romax) to a receptacle box he placed on the trailer. He drilled holes through a girder on the underside of the trailer and attached the box there with bolts and nuts. He buried the cable between the trailer and the hangar in a trench. He ran the cable through an existing aperture in the south wall of the hangar and plugged it into the last outlet east inside that wall. He traced the wiring on the inside of the building. It ran along the wall about three feet above the floor west to an outlet box and then up over a cement pilaster north and down to a fuse box on the north wall of the hangar's south corridor. This box contained the fuse for the circuit on which the trailer was thus included. Wires ran from the fuse box to the outlet box where they split to comprise separate circuits east and west. Inside the building there was no insulation except that which was on the wiring itself. He told the Air Force officer that the wiring to the trailer was "strictly temporary" and that he could take it with him when he left.

Richard L. Simpson: He is chief of the Grand Island fire department. The alarm for the fire came in at 3:26 p. m. When he arrived at the scene a great quantity of smoke was emerging from the west side of the hangar. The dormer on the south had already burned out. Then the fire broke through the west side.

He returned to the site the next morning. At the place where the trailer had been parked he saw the cable sticking up out of the ground. It was bent to the north. Its two bare ends were crossed and brazed together. He conferred with Farnsley, the Roush employee who had moved the trailer both to and from the airport. Farnsley told him that when he removed the trailer he disconnected the fuel line and walked around the trailer but did not see anything and so he hooked it up and pulled it away. "He made no statement at that time that he looked under the trailer and observed any wires. I asked him whether he had looked under the trailer and he said that he saw nothing". The chief, with his assistant and the state fire marshal, then went to where the trailer had been moved. "I looked under the trailer and I saw no electrical box * * * anywhere under the trailer". He "would not want to state that the box was not underneath the trailer".

On the day after the fire he could not get to the fuse box inside the building because the bulkhead holding the grain had burned away and wheat covered the box. He knew it was affixed to a wood wall. He asked that the salvage crew notify him when it was uncovered but no one ever called. A week later, when he returned to the site, the box had been removed. At that time he found a fuse box lying in a pile of debris in the south side of the hangar but he did not know which one there had been more than one in the building it was. It was of no use to him and he ignored it. He did not find or get any report of any fuse which had been blown.

Glenn Van Osdall: He is a master electrician. He rewired the hangar in 1961-62 to place its power equipment on a system separate from the lights. In referring to the cable from the trailer to the hangar he observed no evidence of excessive heating at either end. The hangar end showed evidence of burning "but if the electrical current burned the wire, I would say it would damage the rest of the insulation as well, not just the one point".

William V. Warren: He was president and a shareholder of the grain company at the time of the fire. The company's installation at Grand Island was at the airport. The cable from the trailer went into the hangar about 20 feet west of the southeast corner of the building. The day after the fire he looked at the trailer site and "found the wire pulled straight out in the direction that the trailer had been moved, and the ends were fused together". He saw no lights in the trailer after the Air Force discontinued using it about Christmas and saw nothing to indicate that there was any electricity in the trailer. The fuse box was located "on the north wall of the south wing" and not on "the very south wall". In between was empty space of approximately 20 feet. There were several kinds of fuses in the different fuse boxes. The light circuit was on a breaker box. He did not know of his own knowledge how the wire in the trailer became fused.

Gordon H. Miles: He is an attorney associated with the firm representing the grain company in this litigation. He investigated the fire site on March 19 and again on March 29, 1963. The trailer was not on the premises on the former date but was there again on March 29, faced in a different direction (east) and about 190 feet from the hangar. He looked under the trailer and located a receptacle box attached to a cross-member. He removed the box. He did not know when it was placed there. The girder of the trailer was not bent in any way. The north half of the hangar was burned out. The southwest corner of the building never did burn. A photograph introduced in evidence shows the fire burning from north to south. On March 19 he found a fuse box in the debris in the south corridor. He did not know how it got in its then condition.

Joseph J. Gilgan: He resides in Seattle, is an electrical engineer, and has done post-graduate work in electromagnetic theory. He visited the airport in 1964 and made an electrical inspection in the hangar buildings. When a panel box is damaged from the outside in a non-electrical fire there is a normal amount of burning of the paint and defacing of the finish. When such a box is damaged by a fire starting inside it there is evidence of arcing. There are copper globules and whitened spots on the inside. It was his opinion that the box which witness Miles found in the debris gave evidence of electrical arcing inside it. Copper beads there were what was left of the bus bars. There was a hole burned in the face and this can be created only by an arc. The bus bars, the fuse holders and the fuses were practically disintegrated. This is accomplished only by bus arcing. An arc rates from 3500 to 5000 degrees centigrade. Electrical designers must guard against arcing and maintain preventative insulation values. The box taken from the debris is similar to boxes he saw in the other hangar buildings.

There had to be sufficient voltage and current to heat the cable metal to a point where its wires would braze. Copper has a melting point of 2000 degrees Fahrenheit. The heat there was confined to a relatively small area. Through a mockup he was able to get two wires to braze. He found the amperes to be 29. Thus, he reasoned, the circuit carried a 30 ampere fuse at the time the wires were brazed. There can be a short circuit on a line without a fuse blowing. The arc in the panel box could sustain itself for 10 or 15 seconds before a fuse blew. An arc for that length of time would turn the box cherry red at about 1370 degrees Fahrenheit. This would ignite a wood wall which has an ignition temperature of 750 degrees.

He measured the ends of...