Southern Bell Tel. & Tel. Co. v. Watts

• Decision Date: 05 February 1895
• Docket Number: 102.
• Citation: 66 F. 460
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. WATTS.
• Court: U.S. Court of Appeals — Fourth Circuit

66 F. 460

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. WATTS.

No. 102.

United States Court of Appeals, Fourth Circuit.

February 5, 1895

This was an action of trespass on the case brought by Watts, a citizen of West Virginia, against the Southern Bell Telephone & Telegraph Company, a citizen of the state of New York, to recover $9,000, the value of a dwelling and its contents destroyed by a fire caused, as was alleged, by the negligence of the telephone company. The plaintiff offered evidence to prove that the defendant company sent its workmen to plaintiff's dwelling about half-past 11 on the morning of the 7th of February, 1894, to put in a return wire, and connect it with a telephone instrument which the company had under a contract, placed in the library room of his house for his use, and that about an hour after the workmen left the house it was discovered to be on fire. The plaintiff offered testimony to prove that the defendant's workmen introduced the wire by boring a hole in an upper corner of the casing of a bay window of the library room; that the cavity of the casing extended below the floor to the sill of the house; that the wire so introduced had been soldered to a short wire on the telephone instrument; and that two other wires were at the same time and near the same place soldered with a hot soldering iron heated to a cherry heat. Testimony was produced to show that the house had been built about seven years, and that at the bottom of the basing shavings had been left by the carpenters who built it, and the contention of the plaintiff was that fire had been communicated through the holes in the casing, and had set fire to cobwebs or some inflammable substance inside, and had dropped down to the shavings in the bottom of the casing below the floor of the room. The plaintiff's testimony tended to prove that the family left the library when the workmen came, and were afterwards for some time eating dinner in a room across the hall on the other side of the house that a noise was heard which startled them, and upon going into the hall it was found full of smoke, and smoke was seen coming into the bay window of the library, and running around the house the family and servants saw fire under the library bay window immediately under the telephone instrument, and smoke and blaze issuing from the iron ventilator underneath and from the weatherboarding over and above the window, and that this was the first place where the fire showed itself. The plaintiff also offered evidence to prove that such a heated iron as the workmen used, if placed in contact with seasoned wood of the kind the window casing was made of would cause a blaze or spark of fire to pass through a hole in the wood, and ignite any inflammable substance inside. The plaintiff gave in evidence other facts and circumstances tending to prove that the fire which destroyed his house was caused by the careless use of a heated soldering iron by defendant's workmen, and that there was no other cause for it.

The defendant produced a witness, Rauch, the workman who did the soldering, who testified that there was no new hole bored to insert the new wire, but a small quarter-inch hole already there was used; that the soldering iron was not heated to a red heat, but only sufficiently to melt the solder; and Rauch testified that in making the connections he soldered three wires, but did not bring the iron in contact with the casing or scorch it, and that the iron was immediately passed out of the window to a workman on the outside, and carried away; that after the soldering he bent the wires with his fingers, and noticed nothing unusual. Testimony of the plaintiff's witnesses showed that in the cellar, in a part partitioned off and not under the library room, but adjoining it, there was a considerable quantity of dried leaves, but that under the library there was nothing but some vegetables.

The defendant offered testimony to show that such an iron would not ignite wood, and that fire could not be communicated in that way, and produced a board before the jury, and the witness Rauch bored holes through it, and put a wire through it, and soldered it, to illustrate this contention. The witness Rauch, being cross-examined by the plaintiff, testified that he did not know of a case in which, in soldering telephone wires, he had ever burned the wood, and did not think a careful man would burn the wood, and that he had done the soldering at plaintiff's house in the same way he had done it at Sullivan's. The plaintiff then, in rebuttal, produced the witness Sullivan, who testified that in putting in the return wire at his store that same morning the workmen had bored three new three eighths-inch holes, and after this fire his attention was called to these holes, and he saw that where the soldering had been done there were on the wood two scorched or burned places, each about one inch wide, one about two and one-half inches long, and the other about one and one-half or two inches long, one above and the other below one of the holes. The defendant objected to the evidence of the witness Rauch and the witness Sullivan, and excepted to the ruling of the court admitting their testimony as to the manner of putting in the return wire which had been put in at Sullivan's store just before Rauch went to plaintiff's house, and to the evidence of the scorching or burning of the window frame at Sullivan's store, as irrelevant and impertinent to the issue on this case.

The defendant, before the jury was sworn, filed a plea to the jurisdiction, alleging that the plaintiff at the time of fire was insured in two foreign insurance companies and a Pennsylvania company, and had been paid insurance amounting to $4,500, and that the said companies were subrogated to the plaintiff's right of action in this case, and, as the said companies were not citizens of West Virginia and the plaintiff was a citizen of that state, the court ought not to take cognizance of the case. To this plea the plaintiff demurred, and the court sustained the demurrer, and ordered the plea stricken out. The defendant, having excepted to this ruling, then filed the general issue plea of not guilty.

The defendant prayed for eight instructions to the jury, as follows: 'No. 1. (Granted.) The court instructs the jury that the defendant, by its agents, servants, and employes had lawful right to go upon the premises and into the dwelling of the plaintiff, at reasonable times and in a reasonable manner, to make necessary changes and repairs in defendant's telephone line in said dwelling. No. 2. (Granted.) The court instructs the jury that the presumption is that the work done by the defendant in and about plaintiff's dwelling, February 7, 1894, in the line of their duty, was done in a proper and skillful manner; and before a verdict can be found for the plaintiff the jury must find from the evidence that said work was done in an unskillful and negligent manner, which resulted in the burning of the plaintiff's house. No. 3. (Refused.) The court instructs the jury that if they find from the evidence that there are other theories of the origin of the fire that consumed the plaintiff's house, equally as probable as the one upon which the plaintiff bases his case, then the jury must find for the defendant. No. 4. (Granted.) The court instructs the jury that, before they can find a verdict for the plaintiff in this case, they must find from the evidence that the fire which consumed plaintiff's house originated from the careless and negligent use of a soldering iron in joining wires on defendant's line in plaintiff's house by defendant's servants. No. 5. (Refused.) The court instructs the jury that if they find from the evidence that at the time plaintiff's house was burned he had dry leaves from four to six feet deep stored in his cellar; that said cellar had an open door leading out therefrom; and that there was a seven-inch thimble in a chimney flue in same room that contained said leaves,-- then it is a question for the jury whether such action on the part of the plaintiff does not constitute such contributory negligence as to prevent any recovery by him in this case. No. 6. (Granted.) The court instructs the jury that, if they find that the evidence proves merely that a probability exists that the burning of the plaintiff's property was caused by the negligence of the defendant's servants or agents, that will not authorize them to find a verdict for the plaintiff, but that the burden is on the plaintiff to prove that such burning was the result of the negligence of the defendant, its servants or agents. No. 7. (Refused, but granted as amended by the court.) The court instructs the jury that, in order to find a verdict for the plaintiff, they must be satisfied and convinced by the evidence that the fire was caused by the negligence of the defendant, or its agents or servants, in soldering the telephone wire in plaintiff's house, and that they will not be justified in finding for the plaintiff simply because they may find that the evidence renders it merely probable that said fire was so caused. No. 8. (Refused, but granted as amended by the court.) The court instructs the jury that even if they find from the evidence that the theory advanced by the plaintiff, and stated in the declaration, as to the origin of the fire, is more probable than any theory advanced by the defendant as to the origin of said fire, still they will not be justified in finding for the plaintiff, unless they are convinced by the evidence that said theory of the plaintiff is the true one as to the origin of the fire. ' The court gave instructions 1, 2, 4, and 6, as asked for, and refused to give instructions Nos. 3 and 5, and, in lieu of instructions Nos. 7 and 8 as...