Farmers Home Mut. Ins. Co. of Medelia, Minn. v. Grand Forks Implement Co.

• Decision Date: 03 September 1952
• Docket Number: No. 7220,7220
• Parties: FARMERS HOME MUT. INS. CO. OF MEDELIA, MINN. et al. v. GRAND FORKS IMPLEMENT CO.
• Court: North Dakota Supreme Court

Page 315

55 N.W.2d 315

79 N.D. 177

FARMERS HOME MUT. INS. CO. OF MEDELIA, MINN. et al. v. GRAND FORKS IMPLEMENT CO.

No. 7220.

Supreme Court of North Dakota.

Sept. 3, 1952.

Rehearing Denied Oct. 30, 1952.

Syllabus by the Court.

1. In an action based on negligence, plaintiff has the burden of proving that defendant was responsible for some negligent act or omission and that such act or omission was the proximate cause of an injury.

2. The doctrine of res ipsa loquitur will, in a proper case, permit an inference of negligence, but it has no relation to proof of proximate cause.

3. Proximate cause may be proved by circumstances, if the circumstances will permit a reasonable inference of a cause of injury for which the defendant was responsible and exclude equally reasonable inferences of other causes for which defendant was not responsible.

4. If from plaintiff's evidence, it is equally as probable that injury resulted from a cause for which defendant was not responsible, as it is that injury resulted from a cause for which defendant was responsible, a prima facie case of proximate cause has not been established.

Day, Lundberg, Stokes, Vaaler & Gillig, Grand Forks, and Robins, Davis & Lyons, Minneapolis, Minn., for plaintiffs and appellants.

Burtness & Shaft, Grand Forks, for defendant and respondent.

BURKE, Judge.

In this action plaintiffs, all insurance companies, sought, under their right of subrogation, to recover from the defendant losses paid for fire damage to the Poppler Piano and Furniture Company. In their complaint plaintiffs alleged the fire damage, the losses paid because thereof, their right of subrogation and that the damage had been proximately caused by the negligence of the defendant. In its answer the defendant admitted all of the allegations of the complaint except those relating to negligence and proximate cause. The issues of negligence and proximate cause were therefore the only issues in the case. Trial of the action before a jury resulted in a verdict for the defendant. After the verdict plaintiffs moved for judgment non obstante or in the alternative for a new trial. This motion was denied and plaintiff has appealed both from the order denying the motion and from the judgment.

The specifications of error relate first, to the sufficiency of the evidence, second, to the instructions, third, to the admission and rejection of evidence, and fourth, to the argument of counsel. We shall direct our attention first to the specification that the verdict is contrary to the evidence.

The fire started in the machine shop which was located on the second floor of defendant's place of business and was where defendant engaged in the business of repairing tractors and tractor parts. The dimensions of the shop were approximately 50 feet by 100 feet with the shorter dimension running from north to south. Located against the east wall of the shop was what was known as the test bench. This bench was 31 inches high and 12 feet long. On the south end of the bench was an L shaped test panel which extended along the east wall, and then at a right angle across the south side of the bench. This panel was 2 1/2 to 3 feet high and contained various instruments for testing electrical equipment. Immediately south of the test bench in the southeast corner of the shop were the electrical switches, fuses and meters. There were one 400 ampere switch, three 100 ampere fuse boxes and several 60 and 30 ampere fuse boxes. There were three meters, one for lights, one for power and one for the elevator. On the test bench, immediately north of the test panel was an electric plate which was used for drying armature and field coils of electric motors and generators for the purpose of eliminating short circuits which might be due to internal moisture. This electric plate had an exposed heating unit. Over the heating unit, and about 1 1/2 inches above it, was a rectangular piece of sheet iron which rested upon two fire bricks which were set vertically one on each side of the electric plate. Coils which were to be dried were set on this piece of sheet iron. On the north end of the test bench was an arc-welder, which was connected to the electric power line which ran above the test bench along the east wall of the shop.

The only evidence as to the origin of the fire is the testimony of plaintiff's witness, Hulett. At the time of the fire Hulett was an employee of the defendant but he had left that employment before the trial. On the day of the fire he had come to work at about seven o'clock in the morning. His first tasks that day were to clean a generator and a motor. The procedure, ordinarily followed in this shop, for cleaning motors and generators, was to take them apart, wash the parts in gasoline, brush them during the washing with a small paint brush, dry them with an air jet and then place them on the metal sheet over the electric plate to eliminate any moisture that might be within the coils. The washing was done at the test bench in a metal pan which was approximately 4"' X 4"' X 12"' in dimensions. In the bottom of the pan at one end was a drain into which was inserted threaded plug stopper. This stopper projected about an inch below the bottom of the pan. In the test bench was a depression into which the projecting plug was placed when the pan was in use. This pan therefore, while movable, always occupied the same place on the test bench. Hulett's testimony as to the distance of this pan from the electric hot plate was not always consistent but his final estimate of that distance was that it was not less than four nor more than six feet. About two pints of gasoline were put into the pan when parts were to be washed. This amount filled the pan between one third and one half full. On the morning of the fire, Hulett first washed the parts of the motor, dried them with the air jet and placed them over the electric hot plate. He then proceeded to clean the generator. He had just removed the parts of the generator from the pan when he noticed the fire at the south end of the test bench. There was no flash or explosion. The flames moved rapidly north along the bench. Hulett tried to remove the pan before it caught fire but he was unsuccessful. When the pan of gasoline caught fire, Hulett's apron ignited and he was burned. The question was asked: 'Tell us how the fire spread from that pan.' Hulett answered: 'For a few seconds, I didn't see much of anything, getting the fire out on myself. It went on the bench, and it seemed to me it went along the electric line to the arc-welder which sat on the other end of the bench.' On cross-examination he testified: 'When the fire first came there on the bench, I noticed that, as I backed away from it after I got on fire I noticed there seemed to have been a wire right about the wall, any you could see smoke coming out, like it was following something.'

'Q. Smoke coming from the conduits? A. It seemed to come right out of the wall, it is hard to say.' With respect to the arc-welder he stated:

'It burst into flame.'

'Q. Before or after you attempted to remove the gas? A. It was just after.

'Q. Did you notice the arc-welder at the same time or approximately the same time that you noticed the flames there to your right? A. No sir, I believe it was just a little after. I may not have noticed when it first started though.

'Q. But when you did notice it what was its condition? A. It seemed to be all blue. It was not burning red flame, it was sort of blue.

'Q. Smoke coming from it. A. Yes.'

Hulett's fellow employee, Pound, who was in the shop when the fire was discovered assisted him in putting out the fire on his person. Both Pound and Hulett then attempted to extinguish the fire with fire extinguishers. Other employees came up from the ground floor to help. There were seven fire extinguishers in the shop, one was a carbon dioxide extinguisher and the rest were Pyrene. When the contents of these extinguishers were expended without checking the fire, all of the employees left the shop. Thereafter the fire spread and caused damage to the place of business of plaintiffs' insured.

Upon this evidence plaintiffs contend that the fact that the fire was caused by defendant's negligent use of gasoline, was established as a matter of law. On the other hand the defendant says that the proof is legally insufficient to establish proximate cause or to permit the submission of the issue of proximate cause to the jury.

The plaintiffs have the burden of proving that defendant was responsible for some negligent act and that such act was the cause of their injury. 38 Am.Jur., Negligence, sec. 285, 975; 65 C.J.S., Negligence, §§ 208, 209, pages 964, 970.

Here there is no question but that the proof of a negligent act on the part of the defendant is sufficient. The critical issue is whether that negligence was shown to be actionable by evidence establishing it as the proximate cause of the fire which injured plaintiffs' insured.

As stated in their brief plaintiffs' theory as to causation is as follows: The witness, Hulett, 'first noticed the fire on the testing bench, to his right, in the general vicinity of the hot plate * * * the witness was soaking objects in gasoline and brushing them off with a paint brush. We all know that the use of a paint brush soaked in such gasoline if brushed vigorously will cause droplets of gasoline to fly into the air and to dissipate themselves as vapor. It is common knowledge that this vapor or these droplets of gasoline are highly inflammable. Hulett didn't actually see the fire start. Therefore plaintiffs are unable to produce actual evidence as to the cause of the fire. We could only supply Mr. Hulett's testimony as to the physical condition in the actual situation which was present up to the time the fire was first observed. Appellants contend that the doctrine of res ipsa loquitur is available to the plaintiffs if in an action based on negligence...