Howell v. Robinson Iron & Metal Co.

• Decision Date: 09 March 1962
• Docket Number: No. 35014,35014
• Citation: 113 N.W.2d 584,173 Neb. 445
• Parties: George F. HOWELL, Appellant, v. ROBINSON IRON AND METAL CO., a partnership, Appellee.
• Court: Nebraska Supreme Court

Page 584

113 N.W.2d 584

173 Neb. 445

George F. HOWELL, Appellant, v. ROBINSON IRON AND METAL CO., a partnership, Appellee.

No. 35014.

Supreme Court of Nebraska.

March 9, 1962.

Syllabus by the Court

1. In an action for damages predicated on negligence the burden of proof is on the plaintiff to adduce evidence that the neglect charged either alone or in connection with other acts was the proximate cause of the damages.

2. Negligence is never presumed, and it cannot be inferred from the mere fact that an accident happened.

3. The burden of establishing a cause of action by circumstantial evidence requires that such evidence, to be sufficient to sustain a verdict or require submission of a case to a jury, shall be of such character and the circumstances so related to each other that a conclusion fairly and reasonably arises that the cause of action has been proved.

4. The burden of a plaintiff, relying on circumstantial evidence to sustain a cause of action for damages, does not require him to exclude the possibility that damages flowed from some cause other than the one on which he relies.

5. If circumstantial evidence is susceptible of any reasonable inference inconsistent with an inference of negligence on the part of the party charged, it is insufficient to sustain the charge or to require submission of the issue to a jury.

6. In a case where reasonable minds may draw different conclusions as to whether or not acts of negligence charged have been proved, a question for determination by a jury is presented.

Cassem, Tierney, Adams & Henatsch, Morris J. Bruckner, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, R. A. Skochdopole, Omaha, for appellee.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

YEAGER, Justice.

This is an action by George F. Howell, plaintiff and appellant, to recover damages from Robinson Iron and Metal Co., a partnership, defendant and appellee, predicated on alleged negligence of the defendant through its agents and employees, which caused a fire which damaged and destroyed property, for the loss of which the plaintiff was entitled to recover from the defendant. The amount of the claimed damage was $7,925.

After issue was joined the case was tried to a jury. At the close of the evidence for the plaintiff the defendant made a motion in the alternative for a directed verdict or for dismissal of the action. This motion was sustained and the action was dismissed. A motion for new trial was filed by the plaintiff which was overruled. From the order overruling the motion for new trial and the judgment dismissing the action the plaintiff has appealed.

To the extent necessary to state here, it was alleged by the petition on which the case was tried that the plaintiff was the owner of a building situated at 3877 Leavenworth Street in Omaha, Nebraska; that in the building was an abandoned ice plant containing a lot of scrap iron; that about May 2, 1957, the plaintiff sold the scrap iron to the defendant which scrap iron, under agreement, was to be removed by the defendant; that for the purpose of removal the south end of the building in which the equipment was located was placed under exclusive control of the defendant; and that the employees of the defendant, for the purpose of removing the equipment, used cutting torches which were so negligently used as to set fire to and destroy the south end of the building.

The acts of negligence charged were 10 in number. In substance they were as follows: (1) In allowing sparks to settle in the wooden framework of the building; (2) in applying direct heat from an acetylene torch to wooden framework and combustible material; (3) in allowing sparks off metal to come into contact with wooden framework and combustible material; (4) in failing to use experienced personnel; (5) in failing to determine whether any sparks were still smoldering before the employees left the premises; (6) in failing to use baffle plates to protect against direct heat coming from the acetylene torch; (7) in cutting over a wooden floor without having first swept the floor; (8) in failing to wet down the floor and combustible material on it before cutting over them; (9) in failing to keep a proper lookout for unarrested sparks; and (10) in failing to have adequate fire extinguishing equipment.

The effect of the judgment of the district court was to say that the plaintiff failed to adduce evidence sufficient upon which to submit to the jury the question of whether or not defendant in any of the respects charged was guilty of negligence which was the proximate cause of the fire and its consequences.

The record shows that there was a fire in the building described in the petition and that the part of it involved in the action was for all intents and purposes destroyed but not altogether consumed. The front of the building faced to the north on Leavenworth Street and was not of wooden construction. Attached on the south was a wooden structure built on two levels. The dimensions were about 45 by 60 feet. The floor was cement but almost in its entirety the rest was wood. Prior to 1943 this portion of the building was used as an ice-manufacturing plant. Thereafter it was used only for the storage of furniture. The ice-making equipment was, on May 2, 1957, sold to the defendant under an agreement for removal by the defendant. It was contemplated that the equipment, being metal, would require cutting by the use of acetylene torches for removal. Outside, at the southwest corner and immediately adjacent to the south wall, was a pit filled with rubbish which was there at the time the sale was made. There was a garage attached to the east side of the building, the south end of which was near the south end of the building. There were doors and windows in the building but their sizes and locations are not clearly stated. A large part of the interior of the building was covered with cardboard. The facilities and equipment, except the metallic equipment used for ice making, were what may be regarded as inflammable. Prior to the start of removal of equipment, all furniture had been removed and the defendant had removed all rubbish, debris, and loose material in the building. There had however been no sweeping to remove an accumulation of dirt and dust. The work in removal was started possibly on May 7, 1957, and was carried on practically continuously from about 8 a. m., on May 8th. It was in the direct charge of one Frank Sillik. He had two helpers. The evidence indicates that for a large part of the day Sillik was engaged in cutting the metal with an acetylene torch. What the other two did is not disclosed except that while Sillik was operating the torch one of them was watching to see that no fires were started by sparks from the torch. These employees stopped work about 5 p. m. and left the premises about 10 minutes later. The fire was reported about 7:50 p. m. There is no direct evidence as to what caused the fire and none whatever as to the...