Appeal
from Superior Court, Halifax County; Clayton Moore, Special
Judge.
Action
by B. P. Collins against the Virginia Power & Electric
Company. From a judgment for plaintiff, defendant appeals.
No
error.
In
action for damages from fire caused by electricity
instructions taken as whole held to instruct that, if
evidence showed fire started at bracket on building, then
principle of res ipsa loquitur would apply.
This is
an action for actionable negligence brought by plaintiff
against defendant alleging damage. The evidence of plaintiff
was to the effect that on May 2, 1932, he owned a warehouse
frame wooden building, the market value of which was $1,100
with a stock of merchandise in it, of the market value of
$400. The defendant is a public service corporation
furnishing electric power and lights. Its name indicates what
it is, "Power & Electric Company." It had a primary
service current line on poles which carried 6,600 voltage
running along state highway No. 40. A secondary three-wire
service line transmitted or conducted the current from one of
its primary poles, which had a transformer, to a pole within
some 30 or 40 feet of plaintiff's warehouse frame wooden
building. A metal bracket was attached to the southwest
corner of the warehouse, about 15 feet from the ground; the
bracket was not over 2 feet from the eaves of the southwest
corner of the west side. The wires, bracket, equipment
appliances, installation, insulation of wires, material
maintenance, inspection, etc., were all done and furnished by
defendant on plaintiff's premises.
O. S.
Dickinson, a witness for plaintiff, who had been working for
plaintiff about 20 years, testified, in part: That on May 2,
1932, he was sleeping in a room in the brick building of
plaintiff, next to the warehouse, he was awakened--the window
he looked out was about 20 feet from the bracket: "When
I woke up I jumped up and ran to the window so I could look
out and see the fire. When I looked out the window I saw the
corner of the warehouse on fire where the wires came to the
warehouse. That was the southwest corner of the warehouse.
The metal bracket which has been described was not over two
feet from the eaves of the southwest corner,
on the west side, right on the corner, as close as it could
get to it, next to the store building. When I looked out of
the window and saw the fire there was not a very large area
burning at that time. I don't think there was over three
feet. It was not over three feet from the corner. I could see
the eaves just were catching a little, weather-boarding
catching up this way and whether it was catching on the south
side I don't know because I could not see on that side.
No fire whatever on the top of the building. The fire was
right along the metal bracket. When I looked out and saw the
fire burning around the metal bracket." Dickinson
dressed and went to the warehouse. "I took my keys and
opened the warehouse and got up in the warehouse and not a
spark of fire in there, just smoke at the corner where the
fire was coming through the crack. No fire in the inside of
the warehouse the fire was right on that corner where the
bracket was. *** After I came from the inside of the
warehouse I went to the place where the fire was burning.
Went down to the corner of the warehouse. I saw the fire
burning around the bracket and of course it was getting
larger and larger. *** As the fire burned the wires soon fell
down in the water. I could see it popping and blue fires.
"Q.
When the wires fell into the water, what happened to the
wires? A. They were popping and shooting.
"Q.
What happened to the wires as they felt into the water or
after they fell into the water? A. They were popping and you
could see blue blazes flying from them. *** I would say the
wires sputtered in the water five minutes before they
stopped. I didn't notice particular. I don't know
that they sputtered five minutes. I don't think it was
over that. Might have been five minutes or a little longer. I
don't know how the current was finally cut off of the
wires. *** About twenty feet from that window. That was the
closest window. That is the window I looked out of, the south
window. When I jumped up out of bed I rushed straight to that
window. They were standing under that window calling me, on
the side of the building. It is not over twenty-five feet
from the rear window to that metal bracket. I should not
think it is over twenty-five feet from the window on the rear
to the metal bracket on the end of that warehouse. *** I went
upstairs at nine o'clock that night and went right to
bed. This fire occurred somewhere between ten-thirty and
eleven o'clock. I don't know exactly."
William
W. Johnson, a witness for plaintiff, testified, in part:
"I was in Weldon on the night of May 2nd, 1932, and saw
the fire at Collins' warehouse. *** When I got there the
fire was on the corner of the warehouse about fifteen feet
from the ground, burning in a circle that you could put your
arm around. The wires went directly into the circle of this
fire, the wires coming from a pole went in and you could see
the wires coming out to go to the brick store building, came
out from it. The wires came from a pole, I guess to be around
thirty or forty feet from the corner of that warehouse. They
were light wires, black wires. *** The fire was on the corner
this was approximately a foot, the flame just touching the
tip, place it projects over, I wouldn't say a foot but
the flame running up to the edge of the roof. The flames were
in about a foot of the roof and the center of the fire was a
foot or eighteen inches down, after I saw the fire up there
where the wires went into the center of it. *** He unlocked
the warehouse door and I went in the warehouse with him. ***
I had observed the fire on the outside. I saw the wires fall.
When they burned loose at the top they fell out, kinder
pulled away from the building and fell out towards, formed
more or less, a straight line from the pole to the store.
They fell to the West, away from the side of the building.
They fell on the ground. After they fell on the ground they
sputtered for probably a minute to two minutes. The garden
hose had been turned out there and the ground was wet and
when they hit the ground they arced up and burned in two,
insulation burned right off of them. *** I said when I got to
the building there was burning up in the neighborhood of the
bracket and there was a circular area of fire that you could
reach your arm around like this, I could not say how much
below the bracket was burning because I didn't see the
bracket. I could see the wires coming in. It was not over
eight inches below the lowest wire that was burning but I
didn't see any bracket at all. I would say it was burning
a foot to fifteen inches above the bracket."
H. R.
Hargrove, witness for plaintiff, testified, in part: "On
the night of May 2nd, 1932, I was in my store. I saw this
fire which it is alleged occurred on that night. I got there
somewhere between ten-thirty and ten-forty-five. *** There
was a metal bracket on the warehouse, with three wires
connected to that metal bracket. The wires led from the pole
on the street, thirty or thirty-five feet. Those wires were
used to run current in the Roanoke Supply Company. The fire
was around the metal bracket on the warehouse. The center of
the fire was at the metal bracket on the warehouse, best I
could see it. I imagine this metal bracket was located about
a foot, might be more, from the roof. Might be less. When I
first got there the flames had not reached the roof. *** The
wires fell down and sputtered and arced a minute or two. The
current was finally cut off the wire was cut in two. I
don't know who cut the wire."
There
was other evidence on the part of
plaintiff corroborating the above-named witnesses. The
plaintiff introduced two witnesses whom the court below found
were experts. The first, in answer to a hypothetical question
propounded by plaintiff, testified:
"Q.
Do you have an opinion as to what was the cause of the
fire? A. Yes, sir.
"Q.
What is that opinion? A. It was set afire from the wires in
my opinion." The second, in answer to a hypothetical
question, testified:
"Q.
Do you have an opinion as to what was the cause of the
fire? A. Yes, sir, I should say it can be caused by
arcing on that bracket."
The
defendant denied negligence, and introduced witnesses to the
effect that the fire did not start as contended for by
plaintiff's witnesses at the bracket, but elsewhere; that
the wires, bracket, etc., were properly installed, insulated,
and inspected.
J. H
Cranwell, a witness for defendant, testified, in part:
"I am employed by the Virginia Electric & Power Company,
I have been with the company a long time, probably twenty
some years, twenty-three or four years. I live in Roanoke
Rapids. I am supposed to be service man with the company,
meter reader, looking after service. In looking after service
it is my duty to inspect service and see that the appliances
are all right. That is part of my job to inspect the service
and see that they are kept in good condition. I inspected the
service into the premises of Mr. Collins, where the fire
occurred, every month; around the 12th or 13th of each month
passed there and read the meters, always inspected the
service when convenient for me to do it. The last time I
inspected that service was the 13th or 14th of April, which
would be less than thirty days before the fire. That record
was not in writing. I inspected the wire that came from the
transformer to the corner of the building and from the corner
to the back end of the brick store building. The wires were...
