Joseph T. Ryerson & Son, Inc. v. HA Crane & Brother, Inc., 17574.

• Decision Date: 31 October 1969
• Docket Number: No. 17574.,17574.
• Citation: 417 F.2d 1263
• Parties: JOSEPH T. RYERSON & SON, INC., Appellant, v. H. A. CRANE & BROTHER, INC., Towmotor Corp., and Allied Chemical Corp.
• Court: U.S. Court of Appeals — Third Circuit

417 F.2d 1263 (1969)

JOSEPH T. RYERSON & SON, INC., Appellant, v. H. A. CRANE & BROTHER, INC., Towmotor Corp., and Allied Chemical Corp.

No. 17574.

United States Court of Appeals Third Circuit.

Argued June 3, 1969.

Decided October 31, 1969.

Bertram M. Light, Jr., Newark, N. J., for appellant.

Peter J. McDonald, George D. McLaughlin, Newark, N. J., argued for appellee H. A. Crane & Brother, Inc.

James T. Clare, Stryker, Tams & Dill, Newark, N. J., argued for appellee Allied Chemical Corp.

Before KALODNER, VAN DUSEN and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge.

This diversity action, based on negligence, arises out of a fire which occurred in appellant Ryerson's building in Jersey City, New Jersey. There was no reliable indication as to the cause of the fire. Indeed, without objection, the court below charged the jury that "there has been no proof asserted as to the origin of the fire." Appendix (App.) 549a.

Plaintiff-appellant sued three parties for damages from the fire, appellee H. A. Crane & Brother, Inc. (Crane), appellee Allied Chemical Corporation (Allied), and Towmotor Corporation (Towmotor). The jury rendered a verdict in favor of all the defendants.¹

On the day of the fire, August 11, 1964, appellee Crane was engaged in repairing the roof of the Ryerson building. In so doing, Crane constructed an apparatus to raise and lower tar buckets from the ground to the Ryerson roof. The ground abutting the Ryerson building was owned by appellee Allied. Ryerson had received permission for Crane to make such use of the premises from Allied. The tar was heated to a temperature of 400° Fahrenheit while on the ground and then hoisted to the Ryerson roof for application.

On the same day Towmotor was engaged in repairing a forklift which belonged to Allied and was located on Allied's property. Appellant claimed that the employees of Towmotor used a flammable material to clean the forklift in close proximity to the fire used to heat the tar kettle.

Also at the time of the fire, and for a long time prior thereto, appellee Allied, whose property abuts the Ryerson building, had permitted combustible materials, including wooden boards, wooden pallets, paper, weeds and other trash, to accumulate on its premises near the Ryerson structure.

Appellant asserted that Crane was negligent in heating the tar near the litter on the Allied property, that Towmotor was negligent in using flammable liquids near the Crane fire and the Allied trash, and that Allied was negligent in permitting the litter to accumulate as a fire hazard. Further negligence on the part of Allied was alleged to have been its failure to prevent the spread of the fire from its property to the Ryerson building.

Despite these contentions, not only is there no evidence as to how the fire started but the parties are also in dispute as to where the fire started. The record leaves uncertain whether the fire began on the Allied property or in the Ryerson building. In addition, there was evidence of other causes of the fire. One of Crane's employees admitted to smoking on the job. (App. 352a, 361a.) On the day of the fire a plumbing contractor was working inside the Ryerson building using electric arc welding equipment. (App. 313a.) Ryerson's employees were permitted to smoke both inside and outside the building. (App. 45a.) Finally, there is testimony that an unidentified Ryerson employee stated that at the time of the fire he observed a spark or flame emanate from an electric box and ascend the wall or beam inside appellant's building. (App. 388a-390a, 393a, 394a, 403a and 408a-409a.)

Appellant requested that the jury be charged that regarding appellee Crane, the roofer, the doctrine of res ipsa loquitur was applicable, and regarding Allied, that an adjoining landowner has a duty to aid in the extinguishment of a fire if it starts on its premises. The court refused to so charge. Appellant's request for an extensive and detailed charge on the inferences permissible to be drawn from circumstantial evidence was also rejected.

Appellant moved for a new trial after a jury verdict for all three defendants on the ground that failure to give the requested charges was error.² The court below ruled against appellant on all of these claims, without opinion. Ryerson appealed; we affirm.

Was Appellant Entitled to the Requested Res Ipsa Loquitur Charge Against Appellee Crane?

The Latin phrase res ipsa loquitur means "the thing speaks for itself." Prosser on Torts § 39 at 217 (3d ed. 1964). Application of the doctrine entitles plaintiff to a jury instruction that a finding of the breach of duty element in a negligence action may be based on inferences alone without direct proof.³

The law of New Jersey which controls this lawsuit generally requires the plaintiff to satisfy three elements for a res ipsa loquitur charge:

(1) The accident which produced the injury was one which ordinarily does not happen unless someone was negligent;

(2) The instrumentality or agency which caused the accident was under the exclusive control of the defendant; and

(3) The circumstances indicated that the untoward event was not caused or contributed to by an act or neglect on the part of the injured person. Gould v. Winokur, 98 N.J.Super. 554, 237 A.2d 916, 920 (Law Div.1968), aff'd per curiam, 104 N.J.Super. 329, 250 A.2d 38 (App.Div.), certification denied, 53 N.J. 582, 252 A.2d 157 (1969); Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401, 408 (1962).⁴ See also Restatement (Second) of Torts § 328D(1) (1965).

Regarding the first element, we are not unmindful that this is a fire case and that fires often happen without negligence on the part of any person,⁵ but we do not rest on this ground.

Focusing on the second element, we find that the appellant has failed to show that the instrumentality which caused the fire⁶ was in the exclusive control of appellee Crane. The Restatement (Second) of Torts § 328D(1) (b) (1965) phrases the requirement to be that "other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. * * *"

Both the Restatement and the law of New Jersey contemplate that the plaintiff eliminate all other possible causes by a preponderance of the evidence. No such elimination is present here. Appellant itself attributed the cause of the fire to three different defendants, including Towmotor. (See note 1, supra.) The possibility of additional causes, e. g., arc welding by the plumbing contractor inside the Ryerson building and the testimony of an electric spark emanating from inside the building, was not sufficiently disproved by the appellant to entitle the jury to find that any instrumentality of Crane's was the exclusive cause of the fire.⁷ The operative effect of a res ipsa charge is to force a defendant, who usually knows more about the instrumentality allegedly causing the injury, to bring out all that he knows. In the manufactured products area, a plaintiff is customarily in the dark about the processes used in the making of the products which may not have met the appropriate standard of care. This is not our case. All the relevant events occurred in an area occupied by or observable to the appellant's agents. The policy in favor of the invocation of the res ipsa doctrine is not present here.

For the foregoing reasons we hold that appellant was not entitled to a res ipsa loquitur charge.

Was It Error to Refuse Appellant's Requested Charge on Inferences Permissible From Circumstantial Evidence?

Appellant contends that the trial judge erred in refusing a requested charge relating to circumstantial evidence and the inferences to be drawn from such evidence. The proposed charge, App. 581a, was not only extraordinarily long and complicated but also amounted to little more than a recitation of those portions of the evidence favorable to appellant, thinly draped in ostensibly impartial "whether or not" language.

The wording of a charge is peculiarly a matter for the trial judge.⁸ The trial court is under no obligation to defer to the specific requests of the parties in determining the content of the charge to the jury where the substance of the requests has already been covered in other instructions.⁹

We recognize the importance in negligence cases of relating the law to the evidence in instructions to the jury, as this court has previously stressed. Atkinson v. Roth, 297 F.2d 570, 574 (3d Cir. 1961). Nor do we part from our prior holding that a "requested instruction, in accord with a party's contention, and consistent with evidence in the case, must be granted unless the subject matter has been adequately covered in the court's main charge." Richardson v. Walsh Construction Co., 334 F.2d 334, 338 (3d Cir. 1964).

Rather, in the circumstances here, because

counsel ordinarily have the right to argue to the jury their own conception of what reasonable deductions should be drawn from facts in evidence * * * it is not necessary to this end that the Court point out all the deductions that might reasonably be drawn from these facts.¹⁰

We are thus of the opinion that the charge given by the court below on the subject of circumstantial evidence, while couched in somewhat abstract language, adequately informed the jury of the relevant law and was not in error in the circumstances of this case.¹¹

Was the Court Below in Error for Refusing to Charge the Jury That an Adjoining Landowner (Allied) Has the Duty to Aid in the Extinguishment of a Fire Which Spreads From Its Premises to the Property of a Neighbor and in Refusing Evidence Tending to Show Allied's Breach of Such Duty?

Appellant cites as error the failure to instruct the jury (and the failure to permit some proffered testimony) on the duty of Allied, the adjoining landowner, to use due care in extinguishing the fire and preventing its spread to the Ryerson building. See Annot., 18 A.L.R.2d 1081 (1951).

We uphold the...