Wright v. Valan
| Decision Date | 11 July 1947 |
| Docket Number | 9880. |
| Citation | 43 S.E.2d 364,130 W.Va. 466 |
| Parties | WRIGHT v. VALAN et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The doctrine of res ipsa loquitur applies when an instrumentality under the control of an employee of the defendants causes a sudden fire which damages or destroys nearby property of the plaintiff and the fire is such as, in the ordinary operation of the instrumentality, does not happen if the person in control exercises due care.
2. In an action based upon negligence for the recovery of damages there must be reasonable evidence that the defendant was negligent. When, however, the instrumentality which causes an injury is shown to be under the management and the control of the defendant and the injury is such as in the ordinary course of events does not happen if the person having such management and control uses proper care, the occurrence of the injury furnishes reasonable evidence, in the absence of explanation by the defendant that it resulted from negligence.
3. When it appears, in an action for damages caused by the alleged negligence of the defendants, that hot liquid asphalt extracted by their employee from a metal kettle in his control ignited from a sudden and unexplained flash and set fire to a larger quantity of asphalt which came in contact with and damaged or destroyed the nearby automobile and other property of the plaintiff, and there is evidence that the kettle and its equipment were new and of an approved type and that the employee of the defendants was competent and experienced and exercised ordinary care in the operation of the kettle, no presumption of negligence of the defendants arises; but, under the applicable doctrine of res ipsa loquitur, the jury may infer that the defendants were or were not guilty of negligence which resulted in damages to the property of the plaintiff.
4. A charge to the jury, given by the court in lieu of requested instructions, should not contain any statement which is contrary to or is not based upon the evidence or the undenied allegations in the pleadings in the case.
5. When the facts which bear upon the issue of contributory negligence are disputed or conflicting, or if undisputed are such that reasonable men may draw different conclusions from them, the question of contributory negligence is for the jury.
Goodwin Nesbitt & Spillers, Russell B. Goodwin and Russell G Nesbitt, all of Wheeling, for plaintiffs in error.
Riley & Riley and James A. Byrum, all of Wheeling, for defendant in error.
This action of trespass on the case was instituted in the Circuit Court of Ohio County by the plaintiff, George A. Wright, to recover from the defendants Michael J. Valan, Nicholas F Mansuetto and Michael N. Karavolas, doing business as J. M Valan Company, damages for the destruction of an automobile and a quantity of window glass owned by him, in a fire caused by burning asphalt which escaped from a repair kettle operated by the defendants in Alley 14 in the City of Wheeling on June 21, 1945. The trial resulted in a judgment in favor of the plaintiff for $1,092.08 upon a directed verdict in that amount. To that judgment the defendants prosecute this writ of error.
On June 21, 1945, the defendants as contractors were engaged in repairing the roof of a four story business building known as the Pythian Building, located on the westerly portion of a business section in the City of Wheeling. This section is bounded on the north by Sixteenth Street, on the east by Chapline Street, on the south by Alley 14, and on the west by Market Street, all of which are public streets of that city. At that time the plaintiff conducted a printing business and occupied one of the rooms on the first floor of that portion of the building which abuts on Alley 14. This alley extends along the southern side of the Pythian Building on a descending grade which continues from Chapline Street on the east to Market Street on the west. The surface of the alley is lower at the western or Market Street corner than at the eastern or Chapline Street corner. From an eastern entrance to the building on Alley 14, the business rooms extend west along the alley to the corner of Market Street in this order: a room occupied by Panhandle Printing Company, next to it the room used by the plaintiff, then a room occupied by Electrolux Corporation, and next to it, at the corner of Alley 14 and Market Street, a room used by Caters Restaurant.
For several days previously and on the day of the fire, which occurred between 2 and 2:30 o'clock on the afternoon of June 21, 1945, an employee of the defendants operated a large metal kettle to heat and melt asphalt which was used by other employees in repairing the roof of the Pythian Building. This kettle was located in Alley 14 several feet east of, and up the alley from, the room in the building used by the plaintiff, in a space closed to traffic by ropes stretched across the alley east and west of the kettle. Each of these ropes was placed at a distance of from 15 to 35 feet from the kettle. In the repair work six metal buckets, raised by ropes, were used to carry heated liquid asphalt from the kettle to the roof of the building.
The kettle was new and of the latest approved type customarily used for heating and melting asphalt. It was equipped with a thermometer to register the temperature of its contents and it was in charge of a competent and experienced operator, who drew the melted asphalt into each service bucket by means of a spigot. The spigot was placed on the upper or eastern side of the kettle with respect to its position in the alley, which was near the center and almost directly opposite the entrance to the room which adjoined the room occupied by the plaintiff. When full the kettle held about 165 gallons of asphalt.
About 10:30 o'clock in the morning of the day of the fire the Fire Inspector of the City of Wheeling on a routine visit examined the general situation in connection with the operation of the kettle. He was satisfied with the conditions which he observed and he made no suggestions or complaint. He did, however, caution the operator to be careful to guard against fire.
Shortly before noon on the same day, the plaintiff, while proceeding by automobile to his place of business in the Pythian Building, met the fire inspector in another part of the city. The headquarters at which the inspector was stationed were near the Pythian Building and on his way to his work he rode with the plaintiff to a point in the eastern or Chapline Street section of Alley 14, where the plaintiff parked his automobile a few feet from the rope located above and east of the kettle. When the plaintiff parked his automobile at that place the inspector warned him not to drive too close to the kettle and told him that if the asphalt caught fire it would burn his automobile. The plaintiff admitted that he understood and appreciated this warning and the testimony of the operator of the kettle is that he warned the plaintiff on two prior occasions not to park near it.
After the foregoing conversation between the plaintiff and the inspector, the plaintiff drove his automobile on a business errand from the place at which he had parked it when he was with the inspector. From this errand he returned to his place of business and on his return the drove into Alley 14 at its western or Market Street entrance and parked his automobile in the alley below and west of the kettle and at a distance of approximately five feet from the west rope. According to the plaintiff, this rope was about 15 feet from the kettle and on that basis the distance between the kettle and the parket automobile was from 20 to 35 feet. The plaintiff says he did not lock the doors of his automobile, but the testimony of the operator of the kettle is that he tried to move it before the flowing asphalt came to it, which occurred a few minutes after the plaintiff left the automobile and entered his place of business, that the doors of the automobile were locked and the brakes set, and that he was unable, for that reason, to push it away from the burning asphalt which ran down the alley until it reached and set fire to the automobile.
Between 2 and 2:30 o'clock, and shortly after the plaintiff had parked his automobile below the kettle, the operator opened the spigot to transfer asphalt to one of the service buckets. When it entered the bucket there was a sudden flash and the asphalt took fire. At the time the operator was not wearing asbestos gloves. He tried to close the spigot with his hands and with a stick, but the fire spread so quickly that he was unable to stop the flow from the spigot or to extinguish the flames. The burning asphalt flowed down the alley to the automobile, which was completely destroyed by the fire. In addition the fire damaged a quantity of window glass of the plaintiff which was located in his nearby place of business.
Thirty to forty-five minutes before the asphalt ignited, the operator read the thermometer on the kettle and at that time it registered a temperature slightly less than 400 degrees. It is not disputed that standard asphalt will not ignite at that temperature. There is evidence, however, that 425 degrees is a dangerous temperature and that at 450 degrees standard asphalt with ignite if it is poured into a bucket which is cooler than the asphalt. The defendants introduced evidence that the asphalt used at the time was not standard asphalt but steep asphalt, the flash point of which, according to a witness for the plaintiff, is a temperature in excess of 500 degrees.
The theory of the plaintiff is that the hot asphalt ignited when it came in contact with a bucket which carried a lower temperature than the asphalt;...
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