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(- W. va. —, 118 8. E. 521.) perintendent, after communicating damages caused to the property of with the officers of the company, its assignor. It bases its case on desaid they were having no trouble fendant's alleged negligence as folwith defendant's insurance, and de- lows: fendant decided to take chances. It 1. (a) Negligently constructing, gave no further heed. On Saturday maintaining, and operating an imnoon, September 7, 1918, it quit properly constructed wooden dry work for that week, but it did not kiln, in which the wooden parts shut off the steam, as that was need- were permitted to be constantly exed for plaintiff's cannery; nor did posed to heat and become dangerit shut off the steam running into ously inflammable; (b) negligently the kiln, although, if defendant's permitting the box under the kiln in testimony is to be believed, the kiln which was located the coil of pipes was not in use. It had in its em- to become out of repair and to beploy a young man, twenty years come charred from the constant apold, named Edward Thorpe, who plication of heat; the asbestos lining on this day was acting as defend- to fall away from the sides and the ant's engineer. His duties, as testi- wooden sides exposed; the box to fied to by him, were to keep steam

fill up with dust, shavings, and déup, the machinery going, and keep bris, and to become liable to ignite charge of things in general. He and become afire from spontaneous kept steam up till 10 o'clock on this combustion; (c) negligently failSaturday night. By permission of ing to shut off the steam from the defendant's superintendent, he slept coil of pipes and kiln from Saturin the room where the kiln was lo- day noon, September 7th, to 10 P. M. cated, while his home folks were of that day, since the kiln was not away; had slept there for several then in use; (d) that defendant nights preceding. His home was in dried in its kiln silk, cotton, and othKeyser. He testified that some

er fabrics, which prior thereto had glass had been left on top of the

been treated with oil and other inkiln, and about 2 o'clock Sunday flammable substances, and while the morning, while he was dozing in his kiln was filled with these fabrics, chair, he heard a crackling sound as and the kiln was out of repair, deof breaking glass, looked up, and fendant negligently forced into the saw smoke coming out of the top of kiln excessive heat, and caused the the kiln. He is the only eyewitness kiln and its contents to ignite by who claims to have seen the begin spontaneous combustion. ning of the fire. He opened the kiln 2. Other alleged acts of neglidoor, rushed to a fire extinguisher, gence were that defendant violated threw the contents on the fire; got its duty to shut off the steam going two more from the mill, threw their into the coil of pipes, and failed to contents on the fire, broke out a win- give proper ventilation to the kiln; dow for escape, and then called the

also in negligently failing to equip telephone office to give the alarm. It the kiln with a thermometer, so as was perhaps five minutes before he at all times to determine the propgot any response from the tele- er temperature therein; and in failphone. He escaped by the stairway ing to equip the pipe carrying steam heretofore mentioned. The building to the radiator with a proper valve, and all its contents were destroyed, so the amount of steam could be except a small amount of salvage. controlled; and in failing to equip

After the fire, Charles W. Siever the kiln with an automatic device assigned to the plaintiff his claim that would at all times prevent exfor damages to his building and his cessive heat going into the kiln. machinery, so plaintiff sues to re- 3. A final ground of negligence is cover two claims: (1) The dam- alleged in the third count in plainages occasioned to the property held tiff's declaration, to the effect that by it in its own right; and (2) the defendant knowingly hired and kept. in its employ incompetent persons, fuse the jury, embarrass the court, who were permitted to sleep and and entail endless labor for nothing. spend the night in its factory, and We will ignore all points raised in knowingly allowed them to smoke the case, except those which we therein, and that these employees deem controlling. negligently threw the unused por- The court, at plaintiff's request, tions of lighted cigars, cigarettes, instructed the jury that, if they and the contents of pipes upon the found that through defendant's negfloors and property of defendant, ligence the property took fire from which set fire to defendant's prop- spontaneous combustion, then they erty, and which fire spread to the should find for plaintiff. Plaintiff's property of plaintiff and of plain- case was tried upon the theory that tiff's assignor, thereby destroying the fire originated in that way, but it.

it also contends that, if the fire was Defendant pleaded not guilty. started through the negligence of Plaintiff upon the trial relied and Thorpe, defendant is likewise liable. still relies upon its showing of spon- Defendant did not attempt to actaneous combustion of the kiln and count for the fire, except by merest its contents for the origin of the fire. inference that it was started by a Defendant claimed and still claims lighted cigarette thrown in the that there was no duty resting upon waste basket by Thorpe, and it obit to find the cause; that plaintiff tained an instruction to the effect must point out the exact origin of that, unless plaintiff had pointed out the fire and show that defendant's the exact origin of the fire, and that negligence was the cause. It did not this was caused by defendant's negattempt to show the origin of the ligence, then plaintiff could not refire, except in the examination of its cover, and another to the effect that night watchman, who testified that it had not been shown in evidence on making his rounds into the dry- that Thorpe was engaged in defending room, about 1 o'clock Sunday ant's service while he was present morning, he found young Thorpe in its office just prior to the fire, smoking cigarettes and remonstrat- and the defendant could not be held ed with him about it; that when he responsible for any act of Thorpe at returned about 2 o'clock he met that time, which, in the opinion of Thorpe about the head of the stairs, the jury, caused the fire. These inholloing "Fire!" went on into the structions eliminated from the condrying room and found the contents sideration of the jury any negliof a wastepaper basket near a desk, gence of Thorpe, and bound plaintiff and some silks near by, in flames, to prove that the fire originated and that these were some distance through spontaneous combustion. away from the kiln, and there was On that question the jury found for no fire in the kiln, thus leaving the defendant; so that, boiled down, the impression that the fire was caused, main questions here are: (1) not by any defect in the kiln, but Whether the verdict is contrary to from Thorpe's negligence in throw- the law and the evidence; (2) quesing lighted cigarette stubs into the tions arising upon certain instrucwaste paper basket.

tions; (3) some minor questions inThere were over sixty instruc- volving rulings upon the admission tions offered by plaintiff and twen- or rejection of evidence. ty-one offered by defendant. About Plaintiff insists that the fire origihalf of these were given, many of nated by spontaneous combustion of them covering the same points of the dry kiln and its contents. We law in different phraseology. It think the construction, maintenance, seems useless for this court to in- and operation of the kiln clearly veigh against the practice of counsel proved; nor is there any doubt that in needlessly offering so many in- it was clearly and decisively shown structions, which only tend to con- that the kiln, including the walls ( W. Va. -, 118 8. E. 521.) and floor and the sides of the box steam pipes constantly applied for incasing the raditator, had been al- a long time; some witnesses say lowed to become deteriorated and that parts of a sill or joist were so charred by the constant application brittle as to pulverize between the of heat, and to become exceedingly fingers; the wooden kiln, impregnatdangerous and liable to take fire ed with oil from the constant drying from spontaneous combustion. It of oiled silk fabrics. There is some is well known that spontaneous evidence that there was a rack ladcombustion is sometimes the cause en with these fabrics in the kiln; of fires. “When large quantities of dust and shavings in the wooden soot, linen, paper, cotton, or woolen box incasing the radiator; the steam stuffs, ship's cables, etc., become shut off at 10 P. M. and the cooling soaked with relatively small fan stopped, so that there was only amounts of oils (especially drying a limited supply of air, the door to oils), and exposed to a limited access the kiln being closed. Experts who of air, they may take fire sooner or had had long experience and trainlater.

The presence of moisture ing as chemists testified, when told frequently aids spontaneous com- of the conditions shown, that in bustion, and piles of damp hay, their opinion the fire originated in freshly mown grass, sometimes take spontaneous combustion. Among fire spontaneously. The phenom- these were Dr. Frank E. Clarke, enon is not, however, without a professor of chemistry in the State clearly defined cause. Fats and oils University; H. L. Siever, a graduate can be shown to undergo a slow of a textile school of New Bedford, process of combustion at but slightly Massachusetts, and an experienced elevated temperatures. Combustion chemist; C. C. Hauch, a college of a small amount of oil causes the graduate in and teacher of chemisevolution of a corresponding amount try in the Potomac State School of of heat; rise of temperature accel- Keyser; and J. C. Sanders, superinerates the combustion, producing a tendent of schools, who took the further degree of heat, until at a course in chemistry at the State given moment the temperature may University, and has had considerbecome so high as to cause the mass able experience in chemical work. to burst into flame.” 21 New Int. All these testified that in their opinEnc. p. 413.

ion the fire was caused by spontaIt is well known that bituminous neous combustion. Then there is coal, when piled in heaps, frequently the evidence of Thorpe, who testified ignites by the decomposition of the that he was awakened by a noise like sulphuret of iron in it. While juries cracking glass; that he looked up may be slow to believe that fires and saw smoke coming out of the originate that way, and the un- top of the kiln; that there was some trained mind will usually try to find glass left on top of the kiln, and this some other origin, yet the fact that is not disputed; that he ran to the fires are caused by spontaneous com- kiln, opened the door, hastily got the bustion has been so well established fire extinguisher, and threw its conthat there can now be no doubt tents on the fire, which caused it to about it.

Scientific investigation die down a little; he then secured and experiment have proved it, and two other fire extinguishers from the courts have unhesitatingly fixed the mill and threw their contents on liabilities based thereon. In the in- without putting it out. He broke stant case it was shown that all nec- open a window to afford a means of essary elements were present: the escape, and then called the telephone charred or slowly burned wood—not operator to sound the alarm. He charred black, such as we usually says it took about five minutes to have in mind when we speak of get an answer from the telephone charred wood, but wood turned to operator. In this he is fully corroba brownish color, through heat from orated by her, as she thought he was

31 A.L.R.-19.

Trial-con

wanting to talk to her on private stages were the boy and the old matters, and she did not want to night watchman. The boy's testitalk. The alarm given, he rushed mony is corroborated by Layton, down the stairway, he says, hollo- Richmond, and the telephone operaing “Fire!” that he met the night tor; the testimony of the night watchman on the stairs, about three watchman is denied in toto by the steps from the bottom. He went boy, Richmond, and Layton. His outside, with Ashby Layton and E. testimony stands alone; he is a very G. Richmond, who had been for old man, and his story has earmarks some time sitting in the boiler room, that tend to show it is largely the and the night watchman. In his product of his imagination. He restatement that the night watchman peatedly says he was in the dry followed him outside, instead of go- room twenty minutes while the fire ing up the stairs into the dry room, was on, and yet he does not say that he is corroborated by Layton and he even attempted to put it out. He Richmond. To offset the testimony does say that he could not find any of Thorpe, there is the testimony of fire extinguisher. While we recogthe night watchman, who testified nize the great respect accorded to that he was eighty years old; that the verdict of a jury, we have no he was night watchman at the mill; hesitation in saying that we accept that about ten minutes before 2 on young Thorpe's testimony, rather Sunday morning he started “to than the night watchman's. The wind,"—that is, to go his rounds; great preponderance of the testithat after he had gone through the mony, and all the circumstances, canning factory, and started to wind confirm the boy's story and refute above, and got about two thirds of the old man's. The the way up the stairs, the boy came verdict of the jury clustveness of

verdict. to the top of the stairs and told him is clearly against “not to come up there, as the whole the great weight of the evidence. place was on fire;" that he thought Even the night watchman does not the boy was playing pranks on him, attempt to say that Thorpe threw so he went on up and into the dry burning cigarette stubs into the room; that the boy ran on down waste basket, but merely leaves that where the other two men were; that for inference. Plaintiff's property he, the night watchman, tried to get was burned by a fire which originata side door open and close the mill ed on defendant's premises, and we door, so as to confine the fire to the think, under the evidence, the jury dry room till the fire company could would have been justified in finding get there; that when he got upstairs that it arose from spontaneous comthe fire was confined to a waste- bustion. True, there are some other basket beside a desk, near the tele- witnesses who say that when they phone, and some silk bars, probably first saw the fire it was in the main six in all; these, he says, were some building and they saw no fire in the distance away from the kiln and in dry room, but they were not in the another end of the room; that the building and did not arrive until the fire was about 2 feet high, but there flames were bursting out of the was then no fire about the kiln; that main building; that they saw no fire he busied himself for twenty min- then in the dry room proves nothutes trying to arrange the doors, ing. The door from the dry room and finally escaped to the ground to the large second-story room of outside, not by the stairway, but by the main building was open, and the sliding down a rope. He agrees that evidence shows there was a draft of the boy had broken out a window; air going that way, so that the why he did not throw the burning flames would tend to spread quickly basket and silk out he does not say. into that room. That the fire start

The only eyewitnesses who pre- ed in the drying room, and notend to have seen the fire in its early where else, is fully established by. ( W. va. —, 118 8. E. 521.) the testimony of a great number of it, and consequently he did not shut witnesses. No witness having any it off until the steam plant was shut knowledge of the fire in its early down, ten hours later. Defendant stages testified to the contrary. well knew the condition of the kiln. Even defendant's witness, the night It had been warned. It could have watchman, says it started there. prevented the fire by the use of or

Was defendant's negligence dinary care, and at very slight exshown? Yes; undoubtedly. It was pense. Of course, it is easier to see shown that the kiln was built of now what it ought to have done, wood, as heretofore stated; that it than it was before the fire occurred; had been used for over five years in but it was its duty to guard against drying oiled fabrics, so that the danger from fire. It owed this duty floor and walls became impregnated to the plaintiff. If the night watchwith oil; the wooden parts, includ- man is to be believed, there were no ing a sill or joist in the box below, appliances at hand with which to became charred and dangerously in- put out the fire,-an act of negliflammable, so much so that plain- gence. Had there been such, he tiff's insurance was canceled on an could have put it out. McNalley v. inspection of the kiln by the en- Colwell, 30 Am. St. Rep. 494, and gineers of the insurance company.

notes (91 Mich. 527, 52 N. W. 70). Of this the defendant had warning, We are of opinion that defendbut gave no heed, probably because ant's negligence in constructing, no complaint was made about its maintaining, and operating such a own insurance. If its own insur- highly dangerous fire trap, under ance had been canceled, the defect the circumstances shown, and parwould doubtless have been remedied. ticularly in operating it after reIt was further shown that an auto- peated warnings, clearly appears matic device could readily have been from the evidence. Under these cirinstalled that would have controlled cumstances, a verdict exonerating it the steam going into the radiator; from liability ought

Fire-neglithat the steam could have been and not to stand. In the gencellability should have been shut off from the case of Vaughan v. radiator while the kiln was not in Menlove, 3 Bing. N. C. 468, 132 use, but was not until Saturday Eng. Reprint, 490, 18 Eng. Rul. Cas. night at 10 o'clock. A sprinkler 715, defendant piled a hayrick near system could have been installed the line between his and his neighwhich would have automatically put bor's lands, and close to some. out the fire, starting either from the houses. He was repeatedly warned kiln or the wastebasket. A water that the hay might take fire from tank was installed on the building; spontaneous combustion; but his the city water system was right at property was insured and he said he the door. We would not knowingly “would chance it." It took fire do defendant an injustice, but we spontaneously and in consequence cannot but believe that defendant his neighbor's houses were burned. depended for its own safety on its The court held him liable on the fire insurance rather than on its ground that "every person, in the own precautions. The kiln could conduct of his own have been constructed of nonin- affairs, is bound to Negligenceflammable materials, or, if made of act with the care to wood, it could have been kept lined be expected of a man of ordinary with noncombustible materials and prudence." maintained in such manner that it We are not prepared to say, as would not take fire from spontane- counsel for plaintiff would have us ous combustion. Defendant says say, that upon plaintiff's showing the kiln was not in use from Satur- the origin of the fire on defendant's day noon, yet Thorpe was not in- premises, there is a presumption of structed to shut off the steam from negligence of defendant in starting

for injury.

liability for,

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