Karlen v. Hadinger (1911) 147 Wis. 78, 132 N. W. 591.

In Crawford v. Bergen (Iowa) supra, where a person pleaded guilty to a technical assault and was fined, and upon a subsequent civil trial for the assault such plea was admitted in evidence as an admission, in holding that such plea was not conclusive, the court said: "A party charged with a mere technical infraction of the criminal law may well submit to a nominal penalty upon a plea of guilty, to avoid expense and loss of time in a trial, and there is no reason why he may not be permitted to show, upon the trial of a civil action for damages, that he was not in fact guilty of any offense."

However, it has been held that a statement made at the time of the plea of guilty in explanation thereof is not admissible along with the evidence of the plea in the civil action. Root v. Sturdivant (1886) 70 Iowa, 55, 29 N. W. 802. In so holding, the court said: "Defendant was prosecuted criminally for the assault and battery charged in the petition. He pleaded guilty, and judgment imposing a fine was entered against him. On the trial of this cause in the district court plaintiff offered in evidence the records of defendant's plea in the criminal case. Defendant objected to the introduction of the record on the ground of irrelevancy and incompetency; and on the cross-examination of the justice of the peace, who was sworn for the purpose of identifying the record, he sought to prove an explanatory statement made by him when he entered the plea. His objection to the record was overruled, and on plaintiff's objection the evidence of said statement was excluded. We think these rulings are correct. Defendant's plea of guilty was an admission by him that he had committed the assault and battery charged in the information. That such admission was admissible against him on the trial of this cause cannot be doubted. The entry in the docket of the justice was the judicial record of the plea made at the time it was entered, and was competent evidence to prove the plea. Defendant

was not entitled to prove his statement with reference to the transaction made when he entered his plea. The plea was an unqualified admission that he was guilty of the offense charged. No accompanying statement or explanation could change its character in that respect. If there were any circumstances of mitigation in the transaction, his statement at that time with reference to them would no more be competent than his statements at other times would have been. The case in this respect does not fall within the rule prescribed by § 3650 of the Code, which provides that 'when part of an act, declaration, conversation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other.' statement in question was no part of the plea of guilty, and was clearly not admissible as explanatory of it." And, again, in Hauser v. Griffith (1897) 102 Iowa, 215, 71 N. W. 223, it was said that the defendant in a civil action cannot show the circumstances under which he entered a plea of guilty in a criminal prosecution for the same act, but pointed out that this rule does not conflict with the rule that the plea of guilty is admissible only as a declaration, and that it is not conclusive in the civil action of the fact of actual guilt. And see Satham v. Muffle (1912) 23 N. D. 63, 135 N. W. 797, wherein it was held that evidence as to the advice of friends to plead guilty was held inadmissible, at least in the absence of a showing that such advice was relied upon.

But there also is authority to the effect that the circumstances under which a plea of guilty was entered are admissible in the civil action. Thus,

in Watson v. Kentucky & I. Bridge & R. Co. (1910) 137 Ky. 619, 126 S. W. 146, 129 S. W. 341, where defendant had pleaded guilty to the malicious. burning of property, it was held that the court, upon the trial of a subsequent civil action arising out of the same act, erred in not permitting the defendant to testify as to the circumstances (acted upon the advice of counsel) under which the plea was made, evidence of such plea having

Fire negligence liability for injury.

3. Where a canning company occupies under lease a portion of the floor space of a building for use in its canning business, and a silk-throwing company occupies under lease from the same landlord the remaining floor space for use in its business of drying and manufacturing silk, and in the conduct of its business the silk-throwing company so negligently constructs, maintains, and operates a drying kiln upon its portion of the premises that in consequence of the spontaneous combustion of the kiln and its contents the building and cannery are destroyed by fire, an action lies therefor against the silk-throwing company. Evidence presumption.

4. Generally, where plaintiff's right of action for injury is based upon defendant's alleged negligence, negligence will not be presumed from mere proof of the injury, but plaintiff must prove the negligence as alleged.

[See 20 R. C. L. 184, 195; 3 R. C. L.

Supp. 1042; 4 R. C. L. Supp. 1344, 1345.]

Trial conclusiveness of verdict.

5. While the verdict of a jury in actions for negligence is entitled to great respect, yet, if it is clearly against the decided weight and preponderance of the evidence, it will be set aside.

[See 2 R. C. L. 196; 1 R. C. L. Supp. 435.]

Fire duty to protect against.

6. The law requires the occupant of premises to exercise reasonable care to protect his buildings from fire and to prevent the spread of fire therefrom to the premises of his neighbor; and the presence of a mischievous or disobedient human being upon the occupant's premises, who, the occupant knows, may likely cause a fire which may be communicated to his neighbor's property, may constitute a danger against which the law requires the occupant to guard his neighbor. [See 11 R. C. L. 944; 2 R. C. L. Supp. 1341.]

The facts are stated in the opinion Mr. Harry G. Fisher, for plaintiff in

error:

Defendant cannot claim that the custom of smoking can exonerate it. For it was its duty to have prevented the smoking becoming an actual, living danger.

The P. P. Miller, 180 Fed. 289; Piraccini v. Director Gen. 95 N. J. L. 114, A.L.R., 112 Atl. 311, 20 N. C. C. A. 501; Van Winkle v. American Steam Boiler Co. 52 N. J. L. 240, 19 Atl. 472; New Jersey Fidelity & Plate Glass Ins. Co. v. Lehigh Valley R. Co. 92 N. J. L. 467, 105 Atl. 206; Tomlinson v. Armour & Co. 75 N. J. L. 748, 19 L.R.A. (N.S.) 923, 70 Atl. 314; Hauch v. Hernandez, 41 La. Ann. 992, 6 So. 783.

Whether or not the fire originated in the kiln or from Thorpe's smoking, it was essential and necessary for the defendant to have provided itself with appliances or means to extinguish the fire.

McNally v. Colwell, 91 Mich. 527, 30 Am. St. Rep. 494, 52 N. W. 70; Dorr v. Harkness, 49 N. J. L. 571, 60 Am. Rep.

of the court.

656, 10 Atl. 400; Lockwood v. American Exp. Co. 76 N. H. 531, 85 Atl. 783; Baker v. Hart, 123 N. Y. 470, 12 L.R.A. 61, 25 N. E. 948; Powell v. Dayton, S. & G. R. Co. 16 Or. 33, 8 Am. St. Rep. 251, 16 Pac. 863; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436.

The fire was caused by one or more acts of negligence, for which the defendant was legally responsible.

McNally v. Colwell and Hauch v. Hernandez, supra; Donald v. Long Branch Coal Co. 86 W. Va. 250, 103 S. E. 55.

Messrs. H. P. Whitworth and Charles N. Finnell, for defendant in

error:

It is not allowable to infer the cause and origin of the fire and from that infer negligence, because one presumption cannot be based on another presumption.

Norfolk & W. R. Co. v. Cromer, 99 Va. 763, 40 S. E. 59; Chesapeake & O. R. Co. v. Heath, 103 Va. 64, 48 S. E. 508; Virginia Iron, Coal & Coke Co. v. Hughes, 118 Va. 731, 88 S. E. 88; Bene

canning business, but not to exceed 3 horse power more than it used during the 1913 season, and also water for its purposes; plaintiff was to pay one half the cost, for the period the power and water were furnished, for the fuel, oil, and engineer's salary. It was to do certain work on the boilers not necessary to mention here, and thereafter defendant was to keep them in repair and insured. Defendant could make alterations, not involving structural changes, which it might desire in connection with its business. This lease arrangement continued until May 10, 1918, when it was agreed that defendant should pay its rent direct to Charles W. Siever, but no other change seems to have been made in the arrangements between plaintiff and the defendant.

Defendant installed its silk mill, its main machinery being located on the second floor of the main or threestory structure; on the second floor of the "east wing" it placed its "drying kiln;" this room was 22 by 33 feet, lengthwise facing the railroad; the kiln was located in the east and outside corner of the room, next the railroad; there was a door leading from this room to the second-floor room of the three-story portion; a stairway extended from the front of the ground-floor room up to the second-floor landing near the entrance door between the drying room and the second-story main-floor room. The controversy largely revolves around the structure and operation of the kiln. It consisted of a boxlike arrangement, approximately 4 feet wide, 6 feet long, and 6 feet high. The sides and top were made of hard maple; the floor, which was of yellow pine, was punctured with auger holes. Underneath this floor, suspended to the joists, was a series of steam pipes, a sort of radiator, arranged in tiers or coils, with a total length of about 500 feet; they were inclosed on the bottom and sides with a wooden box, which was lined on the inside with asbestos; at the front and outside the box was an 18-inch fan, which was operated

by machinery, to drive air through the box, and force the heat from the pipes up through the holes in the floor of the kiln. At the top of the kiln was an opening or openings to let the vapors escape. There was also a large sheet-iron pipe, something like a stovepipe, extending from the top of the kiln through the outside wall; this was equipped with an ordinary damper. The steam used in the coils was generated from the boilers located on the ground floor. The silk, after being treated to a solution of water, soap, soda, and neat's-foot oil, was hung on racks and wheeled into the kiln, the door thereto was closed, and it remained there about three hours to be heated and dried.

The boilers and engine were under defendant's control. It furnished heat and power to plaintiff, at the same time furnishing heat and power for the operation of its own silk mill. The kiln had been in operation for over five years. The heated steam pipes, which we will for brevity call the radiator, had during that time caused the wooden floor and sides of the kiln to char and turn a brownish color; the pine floor had been renewed a number of times, but no changes had been made in the kiln walls. The parts next to the radiator had become punky and brittle, through a process of slow combustion, and the weight of the kiln and contents seems to have caused the floor to sag, so that it had to be propped up from below. Defendant had been often requested to replace the kiln with one of noncombustible materials. There was evidence to the effect that the asbestos lining to the box which partly incased the radiator had broken and fallen away from its sides. In February, 1918, after an inspection of the premises and particularly of the kiln, by the inspectors employed by the insurance company that had policies on plaintiff's cannery, plaintiff's insurance was canceled, because of the dangerous condition of the kiln, and defendant was then warned of the danger. But its su