R & S Corp. v. Barnes

• Decision Date: 29 December 1967
• Docket Number: No. 36650,36650
• Citation: 182 Neb. 431,155 N.W.2d 379
• Parties: R AND S CORPORATION d/b/a Briggs Clothing, Appellant, v. Harvel BARNES d/b/a Turf Bar, Appellee.
• Court: Nebraska Supreme Court

Page 379

155 N.W.2d 379

182 Neb. 431

R AND S CORPORATION d/b/a Briggs Clothing, Appellant, v. Harvel BARNES d/b/a Turf Bar, Appellee.

No. 36650.

Supreme Court of Nebraska.

Dec. 29, 1967.

Syllabus by the Court

1. Presumptions and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference.

2. Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. However the law requires that the facts and circumstances proved, together with the inferences that may properly be drawn therefrom, indicate with reasonable certainty the negligent act charged.

Sodoro & Meares, Omaha, for appellant.

White, Lipp, Simon & Powers, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

NEWTON, Justice.

This is a negligence action brought by plaintiff to recover for smoke damage occurring in its men's clothing store as the result of a fire in an adjoining building in which defendant operated a tavern. At the conclusion of plaintiff's evidence, defendant's motion for directed verdict was sustained and a verdict found for defendant. The substance of plaintiff's assignments of error is that the evidence was sufficient to sustain a verdict for plaintiff and the court erred in directing a verdict for defendant.

Plaintiff's theory of the case may be gathered from the following statement contained in the petition: 'That on or about the 29th day of March, 1964 the aforesaid Glenn O. Thomas was employed immediately prior to the hour of midnight in the sweeping, cleaning and preparation for closing of the aforesaid Turf Bar, and that while in the performance of the said duties for the named defendant herein, Glenn O. Thomas negligently and carelessly threw ignited cigarettes, cigars, or both, into a plastic waste container containing paper and other flammable materials; that said plastic container was located beneath a sink and immediately beneath said sink. and that said waste container was used as a receptacle for ash tray waste, floor sweepings and cigarette and cigar butts.' William McMullen, a district fire chief, who was in attendance on the night of the fire and who subsequently examined the premises, stated that the fire occurred in defendant's tavern at a point about three-quarters of the way down the bar towards the back of the tavern at which point he found the remains of a plastic wastebasket and burned electrical wiring. He also ascertained that there was smoke in plaintiff's mercantile establishment. One Glen Thomas, employed by defendant as a bartender, was also called by plaintiff. His evidence indicates that he closed the tavern about 10:30 p.m. on the night of the fire, swept up the floor, locked the door, and left for the night. When he swept up, he emptied all ashtrays, swept from the back towards the front door, swept the sweepings into a pile, picked them up, and deposited them in a large plastic wastebasket about 6 feet from the end of the bar nearest to the front door. About an inch of water was kept in this plastic basket and that after sweeping up, he poured an additional three beer bottles full of water on the sweepings. The second plastic westebasket in the vicinity of which the fire occurred was, as heretofore...