Emery v. Tilo Roofing Co., Inc.

• Decision Date: 02 November 1937
• Parties: EMERY et al. v. TILO ROOFING CO., Inc.
• Court: New Hampshire Supreme Court

195 A. 409

EMERY et al.

v. TILO ROOFING CO., Inc.

Supreme Court of New Hampshire, Hillsborough.

Nov. 2, 1937.

Transferred from Superior Court, Hillsborough County; James, Judge.

Action in case for negligence by Albert J. Emery and others against the Tilo Roofing Company, Inc., wherein there was a verdict for plaintiffs. Transferred upon defendant's exceptions.

Exceptions overruled.

Case for negligence to recover for damage to plaintiffs' buildings caused by fire. Trial by jury with a verdict for the plaintiffs.

Transferred by James, J., upon the defendant's exceptions to certain rulings of the court on questions of evidence; to the denial of its motion for a nonsuit; to the allowance of a portion of the argument of plaintiffs' counsel; to the denial of its requests for instructions and to the charge; to the denial of its motion "that the verdict be reduced"; and to the ruling of the court allowing interest upon the amount of the verdict. The facts and the exceptions considered are stated in the opinion.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiffs. James A. Broderick, of Manchester (Maurice A. Broderick, of Manchester, orally), for defendant.

BRANCH, Justice.

There was evidence tending to prove the following facts:

Upon April 23, 1934, the plaintiffs, Albert J. and Belle Emery, entered into a written contract with the defendant for the reroofing of certain buildings in the town of Milford, of which they were the tenants in common. The contract contemplated the laying of composition shingles over the old' wooden shingles then in place. The old shingles were at this time in a very dry and highly inflammable condition. Work under this contract was commenced by two of the defendant's servants upon Monday, May 7, 1934, on the north side of the main house. Upon Tuesday, May 8, shortly after 10 o'clock in the morning, a fire broke out within a few feet of the ridge pole on the south side of the house. The defendant's servants were then working about five feet from the ridge pole on the north side of the roof. There was evidence that these men were seen smoking cigarettes on the roof before the fire was discovered and that a cigarette stub on such a roof would be a sufficient cause of the fire. There was no direct evidence to prove that the fire was, in fact, caused by a cigarette stub.

In support of its motion for a nonsuit, the defendant argues that "there is no evidence in the case that a cigarette stub was thrown on the roof or that a cigarette stub set the fire or that the fire was caused by the defendant's servants." Causal connection between the negligence complained of and the loss incurred must, of course, be proved. Deschenes v. Concord Railroad, 69 N.H. 285, 46 A. 467. This does not mean, however, that physical causation must always be proved by an eyewitness to the fact. As in the case of other questions of fact, a finding upon the issue of causation may be made as an inference from evidentiary facts. "When it is shown that causes calculated to produce a certain result were in operation at a given time, it is a permissible inference that the natural result in fact followed." McDonald v. Elkins, 88 N.H. 249, 252, 187 A. 725, 727; Maravas v. American Assurance Company, 82 N.H. 533, 540, 136 A. 364. In the present case, the circumstances under which the fire started were fully disclosed by the evidence and furnished a logical basis from which reasonable men might draw a rational conclusion as to its cause. The jury may properly have concluded that the only probable source of fire upon the roof at the time in question was to be found in the conduct of the defendant's servants. There was evidence that none of the chimneys in the plaintiffs' house were in use at the time, and the attempt of the defendant at the trial to show that the fire might have been caused by defective wiring met with scant success. That the fire was caused by a cigarette stub was the most probable possibility disclosed by the evidence, and we think that the jury were justified in finding it to be more probable that) otherwise that the fire resulted from this cause. Staples v. Boston Railroad, 74 N.H. 499, 69 A. 890. "It is not a case of conjecture between equal possibilities, but the ordinary determination of a conclusion from inferences supported by a balance of probabilities." Saad v. Papageorge, 82 N.H. 294, 133 A. 24, 25. Not only was the conclusion of the jury as to the cause of the fire proper as a direct inference from the testimony but the improbability of any other explanation "as an exclusionary premise may serve to strengthen the force of the deduction." Saad v. Papageorge, supra, and cases cited.

The question of causation was specifically submitted to the jury under instructions which were in part as follows: "The first question for you to decide is whether or not the fire was set by the workmen in their use of cigarettes. Unless you are convinced by a fair balance of probabilities that the fire was so caused, your verdict will be for the defendant. * * * As to whether the fire was so caused, you may consider all the surrounding circumstances as disclosed by the evidence, such as the location of the fire when it was discovered, the acts of the workmen either before or after the fire and the presence or absence of other agencies which may have caused the fire." These instructions were fully in accord with the considerations set forth above and we, therefore, conclude that there was no error in the submission of the issue of causation to the jury.

As in Palmer v. Keene Forestry Association, 80 N.H. 68, 112 A. 798, 799, 13 A.L.R. 995, there was evidence that the officers of the defendant knew that their workmen were accustomed to smoke when at work and that they failed to take adequate precautions "against the practice of the habit when it was liable to result in serious damage to third persons."

The claim of the defendant that the plaintiff Belle Emery was guilty of contributory negligence because she saw the defendant's servants smoking upon the roof before the fire and did not say anything to them is untenable. Whether Mrs. Emery appreciated, or should have appreciated, the danger that fire might result from the smoking of cigarettes on the roof, whether due care required that a woman in her situation take the risk of provoking an altercation with the defendant's employees by protesting against their conduct, and whether such protest, if made, would have been effective in preventing the fire, were questions of fact upon which reasonable men might differ. The issue of her due care was properly submitted to the jury under...