Proctor Elec. Co. v. Zink

• Decision Date: 20 May 1958
• Docket Number: No. 208,208
• Citation: 217 Md. 22,141 A.2d 721
• Parties: PROCTOR ELECTRIC CO., to the Use, etc. v. Alan R. ZINK, etc., et al.
• Court: Maryland Court of Appeals

Page 22

217 Md. 22

141 A.2d 721

PROCTOR ELECTRIC CO., to the Use, etc. v. Alan R. ZINK, etc., et al.

No. 208.

Court of Appeals of Maryland.

May 20, 1958.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellant.

Milton I. Vogelhut, Baltimore, for Alan R. Zink, etc.

Edward L. Putzel, Baltimore (August Levene, Baltimore, on the brief), for Gilbert Cummins & Co., Inc.

Before HENDERSON, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

Proctor Electric Company (Proctor), the plaintiff below, has appealed from a judgment for the appellees, Alan R. Zink, trading as Western Welding Company (Zink), and Gilbert Cummins & Company, Inc. (Cummins), for costs, entered by direction of the trial court at the conclusion of the plaintiff's case.

When reviewing the correctness of the direction of a verdict in favor of the defendants, we must resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover.

Cummins is engaged in the business of electroplating and the manufacture of metal furniture. Proctor rented from Cummins space that was not definitely defined in one of Cummins' buildings together with the services of a tow motor operator for the storage of certain of Proctor's goods. The building where the goods were stored was also utilized by Cummins for packing, shipping and manufacturing. On November 10, 1954, Proctor had stored in that building certain bolts of cloth; these bolts were about five feet long and were stacked in piles about six feet high.

On that date, Philip J. Poggie, a welder employed by Zink was directed by Zink's foreman to go to the plant of Cummins to weld a cast iron leg on a press for Cummins. He reported to the foreman at the Cummins plant, who showed him the press that was to be welded. It was then standing about a foot away from the pile of bolts of cloth belonging to Proctor. Poggie asked Cummins' foreman to give him a man to assist him in moving the press. Poggie said on cross-examination by counsel for his employer, Zink, that he asked the foreman to have the man stand by during the welding and watch for fire, but on cross-examination by counsel for Cummins, Poggie said that he could not remember whether he told the foreman he wanted the man to stand by and watch for fire. Poggie and the man from Cummins moved the press to a point about six to eight feet away from the bolts of cloth. Poggie stated that he told the man to remain there and watch for fire, and then prepared the cast iron leg of the press for welding and proceeded to weld it with electric equipment. A complete welding of this nature requires about three quarters of an hour. Poggie had a screen with him but did not use it because he thought the welding operation had been moved far enough away so that a screen was not needed. His welding operation was being conducted at a point about two feet above the cement floor. During the course of this operation, Cummins' maintenance engineer testified that he walked over, tapped Poggie on the shoulder, and cautioned him to be 'careful with your sparks.' In ten or fifteen minutes thereafter, the fire broke out.

Poggie further testified that there is always a danger of fire in a welding operation, unless care is taken; and, because of the possibility of fire, it is a custom in the trade to have somebody assist the welder by watching for and protecting against fire. The order blank read in part: 'Weld leg on press, ask for Cummins, will furnish fire watch.' (Emphasis supplied.) This indicated that Cummins would supply the help to watch for fire. Poggie also testified such a man was there, furnished by Cummins, and both Poggie and Cummins' foreman told the man to stay there and watch for fire, but he did not do so. He also stated that he sometimes uses a screen to protect against fire, and he had such a screen with him on the day of the fire, but did not use it as he thought the press had been moved far enough away from the bolts of goods to avoid any danger to them from fire.

After welding for some time, Poggie raised his shield to change wires and saw smoke coming out of the middle of the piles of bolts of cloth and 'hollered fire.' The man from Cummins whom Poggie and the foreman had directed to watch for fire was not there. The smoke was coming from a point thirteen or fourteen feet from the welding operation, and no damage was observed in the bolts of cloth closer to the welding. There were two wires coming out of a fuse box and the wires ended under the bolts of cloth. The witnesses differed as to whether the ends of these wires were bare or taped, but Frederick B. Critzman, an employee of Cummins who was in charge of these wires, said that he had removed the fuses a week or two before the fire and that the wires were dead. No evidence was produced to contradict the testimony that these wires were dead and there was no evidence that these wires were burned after the fire. None of the bolts of cloth were burned in the entirety; there were just 'spots,' five or six inches in diameter, that went down fifteen to thirty wraps in the coil. Outside of Poggie's welding, there was no other fire in the building except a spot welding at the far end of the building.

Affiliated F. M. Insurance Company of Providence, which insured Proctor against fire loss, paid Proctor's claim and under its right of subrogation sued Zink on the theory that the fire was caused by the negligence of the welder. Zink impleaded Cummins as a third party defendant, alleging that the failure of Cummins' employee to watch for fire caused the loss.

It will be noted that all of the witnesses were produced by the appellant, and they consisted, principally, of employees of the defendants.

The appellees contend that the appellant failed to prove that the fire was caused by the negligence of anyone; that the appellant declined to rely upon the doctrine of res ipsa loquitur, but attempted affirmatively to prove negligence and was unsuccessful. They claim that all of the witnesses agreed that the welding took place at least five to eight feet from the nearest portion of the bolts of cloth, and the witness, Poggie, testified that in his opinion sparks from the welding would not roll more than three feet; consequently, as the fire broke out some thirteen or fourteen feet from the welding, the appellant's own testimony, by which it was bound, conclusively showed that the fire was not caused by the welding operation, and the directed verdicts in their favor were correct. They argue that our decision in the present case should be controlled by the rulings made in the cases of Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241, and Maszczenski v. Myers, 212 Md. 346, 129 A.2d 109. Both of these cases quote from the opinion in the earlier case of Strasburger v. Vogel, 103 Md. 85, 63 A. 202, and the language principally relied upon by the appellees is that found in the Nezbed case, 202 Md. at page 263, 96 A.2d at page 245:

'When the plaintiff invokes this procedure, (res ipsa loquitur) thus putting his reliance upon the inference of negligence springing from the event, it has been authoritatively held that it must not appear by his own evidence, or the evidence adduced in his behalf, that causes for which the defendant was in no way responsible produced the injuries for which damages are sought.'

And, it may be added, the plaintiff's evidence, or that produced in his behalf, should not explain away the inference of negligence, if res ipsa loquitur be relied upon.

As we view the case the doctrine of res ipsa loquitur need not be relied upon by the plaintiff. That doctrine is, in brief, that when a plaintiff in a negligence case proves that he has been injured (a) by a casualty of a sort which usually does not occur in the absence of negligence, (b) by an instrumentality within the defendant's exclusive control, (c) under circumstances indicating that it was not caused by any voluntary act or neglect of the plaintiff, an inference that it was due to the defendant's negligence is allowable. Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552. Here there was evidence showing or tending to show that there was danger of fire from welding operations, that this was known to the defendants, that there was failure to use a protective screen, and that there was failure to have a man remain on duty as a watchman to guard against fire. If these were found to be facts (and we do not understand that they are disputed), they would be sufficient to support a finding of negligence on the part of the defendants. Such a finding, if made, would be a conclusion based upon the facts above stated (assuming them to be facts) and not upon an inference that without negligence on the part of the defendants the fires would not ordinarily have occurred. In other words, there was sufficient evidence to warrant (though not to require) a finding of negligence without invoking the aid of a presumption. Negligence, however, is not actionable by itself; to be actionable it must be a proximate cause of the injury claimed.

We see the real question involved in this case is whether the plaintiff offered sufficient circumstantial evidence to permit the issue of the cause of the fire to go to the jury. Professor Wigmore suggests the following test for the sufficiency of circumstantial evidence to submit an issue to the jury on behalf of the plaintiff: 'Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?' 9 Wigmore, Evidence (3rd Ed.), sec. 2494, p. 299. See also McCormick, Evidence, p. 636. This Court has stated the rule as follows:

'A prayer seeking to take the case from the jury, on the alleged ground of the total failure of evidence...