Louisville Cooperage Co. v. Lawrence
| Decision Date | 19 May 1950 |
| Citation | 230 S.W.2d 103,313 Ky. 75 |
| Parties | LOUISVILLE COOPERAGE CO., Inc. v. LAWRENCE. |
| Court | United States State Supreme Court — District of Kentucky |
Mahan, Davis & Mahan, Louisville, Edwin O. Davis, Louisville, for appellant.
Davis, Boehl, Viser & Marcus, Louisville, Joseph Stopher, Louisville, for appellee.
STANLEY, Commissioner.
The circuit court directed a verdict for the defendant, William M. Lawrence, doing business as William M. Lawrence & Sons, in an action by the appellant for loss sustained through damage by fire alleged to have been caused by the negligence of the defendant.
The defendant was engaged in building a metal walkway and platform on a steel tower supporting a shavings bin and dust collector about sixty feet above the ground. The work required the use of electric and acetylene torches. It was understood that the company would continue its cooperage operations, which required the placing of a large quantity of dry shavings around the base of the tower. They were very flamable as practically all moisture had been removed. It was agreed by the defendant that he would keep these shavings wet at all times. If they collected faster than they were removed for burning in the furnace, it was a matter of a short time until new dry shavings would be added on top of the pile. The defendant's own testimony shows his awareness of the hazard. He furnished his own hose and seems to have wet down the shavings satisfactorily for several days, including the day before the fire. On that day no water was placed on the shavings, and they caught fire in the middle of the afternoon. Damage to the amount of $3,000 resulted before the fire could be extinguished. The defendant understood, he testified, that the company would have a watchman or guard at all times at this particular point. The company's evidence is that there was no such understanding or agreement, but, nevertheless, regular watchmen patrolled the plant and kept an eye on this place. One of them testified that as he was approaching the tower, he noticed sparks were falling from the welding being done on the top of it, and he put out an incipient blaze. Then a red hot piece of iron, four or five inches square, fell from the place where the defendant's men were working and into the shavings, causing an immediate fire to blaze up rapidly. The defendant's employees could not say whether such a piece of iron fell or not, but they and others testified that welding and cutting processes did not and could not have caused a read hot piece of metal that big, that only some sparks are emitted and 1/2 or 1/4 inch edge of the metal is made so hot. There is contradictory evidence of men experienced in the use of welding and cutting devices as to whether the sparks and hot bits of metal would hold white or red heat long enough to have reached the shavings below the tower in that condition.
The court directed the verdict for the defendant after the evidence for both parties had been heard. His ruling was based upon the idea that, assuming the fire was started through the negligence of the defendant in failing to keep the shavings wet and in allowing the piece of hot metal to fall on them, the defendant was not liable for the loss since the plaintiff knew of the imminent hazard and was charged with the duty of supervising the work and the conditions; that though there was no definite proof that the plaintiff knew Lawrence had stopped wetting the shavings, yet it was also the plaintiff's duty to 'protect the situation,' i. e., to see that the shavings were kept wet and it had failed to do so. This was, in effect, to hold the company was contributorily negligent as a matter of law.
No question is made that the defendant's negligence was proved. It may be said likewise the duty of the plaintiff is to be measured by the danger it should reasonably have apprehended. We concur in part in the view of the trial court, which is more implicit than expressed, that where the danger of loss by fire is seen, it is the duty of the owner to use all reasonable diligence to protect his property and to avert it, and if he fails to do so, he must suffer the consequences of his own negligence. 22 Am.Jur., Fires, Secs. 55, 56; Shearman and Redfield on Negligence, Secs. 741, 754. But we cannot agree with the further view that under the circumstances of the case, knowing the imminence of the hazard of fire, the plaintiff was charged with the duty of supervising what the defendant did or did not do, and that, failing to do so, the plaintiff was not as a matter of law entitled to recover its loss, assuming, as the court said, that the defendant's negligence had been established. This view of the court is elaborated by the appellee in his emphasis upon the fact that the plaintiff insisted upon continuing the operation of...
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