(W. Va., 118 S. E. 521.) perintendent, after communicating with the officers of the company, said they were having no trouble with defendant's insurance, and defendant decided to take chances. It gave no further heed. On Saturday noon, September 7, 1918, it quit work for that week, but it did not shut off the steam, as that was needed for plaintiff's cannery; nor did it shut off the steam running into the kiln, although, if defendant's testimony is to be believed, the kiln was not in use. It had in its employ a young man, twenty years old, named Edward Thorpe, who on this day was acting as defendant's engineer. His duties, as testified to by him, were to keep steam up, the machinery going, and keep charge of things in general. He kept steam up till 10 o'clock on this Saturday night. By permission of defendant's superintendent, he slept in the room where the kiln was located, while his home folks were away; had slept there for several nights preceding. His home was in Keyser. He testified that some glass had been left on top of the kiln, and about 2 o'clock Sunday morning, while he was dozing in his chair, he heard a crackling sound as of breaking glass, looked up, and saw smoke coming out of the top of the kiln. He is the only eyewitness who claims to have seen the beginning of the fire. He opened the kiln door, rushed to a fire extinguisher, threw the contents on the fire; got two more from the mill, threw their contents on the fire, broke out a window for escape, and then called the telephone office to give the alarm. It was perhaps five minutes before he got any response from the telephone. He escaped by the stairway heretofore mentioned. The building and all its contents were destroyed, except a small amount of salvage. After the fire, Charles W. Siever assigned to the plaintiff his claim. for damages to his building and his machinery, so plaintiff sues to recover two claims: (1) The dam(1) The damages occasioned to the property held by it in its own right; and (2) the damages caused to the property of its assignor. It bases its case on defendant's alleged negligence as follows: 1. (a) Negligently constructing, maintaining, and operating an improperly constructed wooden dry kiln, in which the wooden parts were permitted to be constantly exposed to heat and become dangerously inflammable; (b) negligently permitting the box under the kiln in which was located the coil of pipes to become out of repair and to become charred from the constant application of heat; the asbestos lining to fall away from the sides and the wooden sides exposed; the box to fill up with dust, shavings, and débris, and to become liable to ignite and become afire from spontaneous combustion; (c) negligently failing to shut off the steam from the coil of pipes and kiln from Saturday noon, September 7th, to 10 P. M. of that day, since the kiln was not then in use; (d) that defendant dried in its kiln silk, cotton, and other fabrics, which prior thereto had been treated with oil and other inflammable substances, and while the kiln was filled with these fabrics, and the kiln was out of repair, defendant negligently forced into the kiln excessive heat, and caused the kiln and its contents to ignite by spontaneous combustion. 2. Other alleged acts of negligence were that defendant violated its duty to shut off the steam going into the coil of pipes, and failed to give proper ventilation to the kiln; also in negligently failing to equip the kiln with a thermometer, so as at all times to determine the proper temperature therein; and in failing to equip the pipe carrying steam to the radiator with a proper valve, so the amount of steam could be controlled; and in failing to equip the kiln with an automatic device that would at all times prevent excessive heat going into the kiln. 3. A final ground of negligence is alleged in the third count in plaintiff's declaration, to the effect that defendant knowingly hired and kept. in its employ incompetent persons, who were permitted to sleep and spend the night in its factory, and knowingly allowed them to smoke therein, and that these employees negligently threw the unused portions of lighted cigars, cigarettes, and the contents of pipes upon the floors and property of defendant, which set fire to defendant's property, and which fire spread to the property of plaintiff and of plaintiff's assignor, thereby destroying it. Defendant pleaded not guilty. Plaintiff upon the trial relied and still relies upon its showing of spontaneous combustion of the kiln and its contents for the origin of the fire. Defendant claimed and still claims that there was no duty resting upon it to find the cause; that plaintiff must point out the exact origin of the fire and show that defendant's negligence was the cause. It did not attempt to show the origin of the fire, except in the examination of its night watchman, who testified that on making his rounds into the drying room, about 1 o'clock Sunday morning, he found young Thorpe smoking cigarettes and remonstrated with him about it; that when he returned about 2 o'clock he met Thorpe about the head of the stairs, holloing "Fire!" went on into the drying room and found the contents of a wastepaper basket near a desk, and some silks near by, in flames, and that these were some distance away from the kiln, and there was no fire in the kiln, thus leaving the impression that the fire was caused, not by any defect in the kiln, but from Thorpe's negligence in throwing lighted cigarette stubs into the waste paper basket. There were over sixty instructions offered by plaintiff and twenty-one offered by defendant. About half of these were given, many of them covering the same points of law in different phraseology. It seems useless for this court to inveigh against the practice of counsel in needlessly offering so many instructions, which only tend to con fuse the jury, embarrass the court, and entail endless labor for nothing. We will ignore all points raised in the case, except those which we deem controlling. The court, at plaintiff's request, instructed the jury that, if they found that through defendant's negligence the property took fire from spontaneous combustion, then they should find for plaintiff. Plaintiff's case was tried upon the theory that the fire originated in that way, but it also contends that, if the fire was started through the negligence of Thorpe, defendant is likewise liable. Defendant did not attempt to account for the fire, except by merest inference that it was started by a lighted cigarette thrown in the waste basket by Thorpe, and it obtained an instruction to the effect that, unless plaintiff had pointed out the exact origin of the fire, and that this was caused by defendant's negligence, then plaintiff could not recover, and another to the effect that it had not been shown in evidence that Thorpe was engaged in defendant's service while he was present in its office just prior to the fire, and the defendant could not be held responsible for any act of Thorpe at that time, which, in the opinion of the jury, caused the fire. These instructions eliminated from the consideration of the jury any negligence of Thorpe, and bound plaintiff to prove that the fire originated through spontaneous combustion. On that question the jury found for defendant; so that, boiled down, the main questions here here are: (1) Whether the verdict is contrary to the law and the evidence; (2) questions arising upon certain instructions; (3) some minor questions involving rulings upon the admission or rejection of evidence. Plaintiff insists that the fire originated by spontaneous combustion of the dry kiln and its contents. We think the construction, maintenance, and operation of the kiln clearly proved; nor is there any doubt that it was clearly and decisively shown that the kiln, including the walls (— W. Va. —, 118 S. E. 521.) and floor and the sides of the box incasing the raditator, had been allowed to become deteriorated and charred by the constant application of heat, and to become exceedingly dangerous and liable to take fire from spontaneous combustion. It is well known that spontaneous combustion is sometimes the cause of fires. "When large quantities of soot, linen, paper, cotton, or woolen stuffs, ship's cables, etc., become soaked with relatively small amounts of oils (especially drying oils), and exposed to a limited access of air, they may take fire sooner or later. The presence of moisture frequently aids spontaneous combustion, and piles of damp hay, freshly mown grass, sometimes take fire spontaneously. The phenomenon is not, however, without a clearly defined cause. Fats and oils can be shown to undergo a slow process of combustion at but slightly elevated temperatures. Combustion of a small amount of oil causes the evolution of a corresponding amount of heat; rise of temperature accelerates the combustion, producing a further degree of heat, until at a given moment the temperature may become so high as to cause the mass to burst into flame." 21 New Int. Enc. p. 413. It is well known that bituminous coal, when piled in heaps, frequently ignites by the decomposition of the sulphuret of iron in it. While juries may be slow to believe that fires originate that way, and the untrained mind will usually try to find some other origin, yet the fact that fires are caused by spontaneous combustion has been so well established that there can now be no doubt about it. Scientific investigation and experiment have proved it, and the courts have unhesitatingly fixed liabilities based thereon. In the instant case it was shown that all necessary elements were present: the charred or slowly burned wood-not charred black, such as we usually have in mind when we speak of charred wood, but wood turned to a brownish color, through heat from 31 A.L.R.-19. steam pipes constantly applied for He wanting to talk to her on private matters, and she did not want to talk. The alarm given, he rushed down the stairway, he says, holloing "Fire" that he met the night watchman on the stairs, about three steps from the bottom. He went outside, with Ashby Layton and E. G. Richmond, who had been for some time sitting in the boiler room, and the night watchman. In his statement that the night watchman followed him outside, instead of going up the stairs into the dry room, he is corroborated by Layton and Richmond. To offset the testimony of Thorpe, there is the testimony of the night watchman, who testified that he was eighty years old; that he was night watchman at the mill; that about ten minutes before 2 on Sunday morning he started "to wind," that is, to go his rounds; that after he had gone through the canning factory, and started to wind above, and got about two thirds of the way up the stairs, the boy came to the top of the stairs and told him "not to come up there, as the whole place was on fire;" that he thought the boy was playing pranks on him, so he went on up and into the dry room; that the boy ran on down where the other two men were; that he, the night watchman, tried to get a side door open and close the mill door, so as to confine the fire to the dry room till the fire company could get there; that when he got upstairs the fire was confined to a wastebasket beside a desk, near the telephone, and some silk bars, probably six in all; these, he says, were some distance away from the kiln and in another end of the room; that the fire was about 2 feet high, but there was then no fire about the kiln; that he busied himself for twenty minutes trying to arrange the doors, and finally escaped to the ground outside, not by the stairway, but by sliding down a rope. He agrees that the boy had broken out a window; why he did not throw the burning basket and silk out he does not say. The only eyewitnesses who pretend to have seen the fire in its early verdict. stages were the boy and the old night watchman. The boy's testimony is corroborated by Layton, Richmond, and the telephone operator; the testimony of the night watchman is denied in toto by the boy, Richmond, and Layton. His testimony stands alone; he is a very old man, and his story has earmarks that tend to show it is largely the product of his imagination. He repeatedly says he was in the dry room twenty minutes while the fire was on, and yet he does not say that he even attempted to put it out. He does say that he could not find any fire extinguisher. While we recognize the great respect accorded to the verdict of a jury, we have no hesitation in saying that we accept young Thorpe's testimony, rather than the night watchman's. The great preponderance of the testimony, and all the circumstances, confirm the boy's story and refute the old man's. The Trial-converdict of the jury clusiveness of is clearly against the great weight of the evidence. Even the night watchman does not attempt to say that Thorpe threw burning cigarette stubs into the waste basket, but merely leaves that for inference. Plaintiff's property was burned by a fire which originated on defendant's premises, and we think, under the evidence, the jury would have been justified in finding that it arose from spontaneous combustion. True, there are some other witnesses who say that when they first saw the fire it was in the main building and they saw no fire in the dry room, but they were not in the building and did not arrive until the flames were bursting out of the main building; that they saw no fire then in the dry room proves nothing. The door from the dry room to the large second-story room of the main building was open, and the evidence shows there was a draft of air going that way, so that the flames would tend to spread quickly into that room. That the fire started in the drying room, and nowhere else, is fully established by. (W. Va. -, 118 8. E. 521.) the testimony of a great number of witnesses. No witness having any knowledge of the fire in its early stages testified to the contrary. Even defendant's witness, the night watchman, says it started there. Was defendant's negligence shown? Yes; undoubtedly. It was shown that the kiln was built of wood, as heretofore stated; that it had been used for over five years in drying oiled fabrics, so that the floor and walls became impregnated with oil; the wooden parts, including a sill or joist in the box below, became charred and dangerously inflammable, so much so that plaintiff's insurance was canceled on an inspection of the kiln by the engineers of the insurance company. Of this the defendant had warning, but gave no heed, probably because no complaint was made about its own insurance. If its own insurance had been canceled, the defect would doubtless have been remedied. It was further shown that an automatic device could readily have been installed that would have controlled the steam going into the radiator; that the steam could have been and should have been shut off from the radiator while the kiln was not in use, but was not until Saturday night at 10 o'clock. A sprinkler system could have been installed which would have automatically put out the fire, starting either from the kiln or the wastebasket. A water tank was installed on the building; the city water system was right at the door. We would not knowingly do defendant an injustice, but we cannot but believe that defendant depended for its own safety on its fire insurance rather than on its own precautions. The kiln could have been constructed of noninflammable materials, or, if made of wood, it could have been kept lined with noncombustible materials and maintained in such manner that it would not take fire from spontaneous combustion. Defendant says the kiln was not in use from Saturday noon, yet Thorpe was not instructed to shut off the steam from it, and consequently he did not shut it off until the steam plant was shut down, ten hours later. Defendant well knew the condition of the kiln. It had been warned. It could have prevented the fire by the use of ordinary care, and at very slight expense. Of course, it is easier to see now what it ought to have done, than it was before the fire occurred; but it was its duty to guard against danger from fire. It owed this duty to the plaintiff. If the night watchman is to be believed, there were no appliances at hand with which to put out the fire,-an act of negligence. Had there been such, he could have put it out. McNalley v. Colwell, 30 Am. St. Rep. 494, and notes (91 Mich. 527, 52 N. W. 70). Fire-negli for injury. We are of opinion that defendant's negligence in constructing, maintaining, and operating such a highly dangerous fire trap, under the circumstances shown, and particularly in operating it after repeated warnings, clearly appears from the evidence. Under these circumstances, a verdict exonerating it from liability ought not to stand. In the gence-liability case of Vaughan v. Menlove, 3 Bing. N. C. 468, 132 Eng. Reprint, 490, 18 Eng. Rul. Cas. 715, defendant piled a hayrick near the line between his and his neighbor's lands, and close to some. houses. He was repeatedly warned that the hay might take fire from spontaneous combustion; but his property was insured and he said he "would chance it." It took fire spontaneously and in consequence his neighbor's houses were burned. The court held him liable on the ground that "every person, in the conduct of his own affairs, is bound to act with the care to be expected of a man of ordinary prudence." Negligenceliability for. We are not prepared to say, as counsel for plaintiff would have us say, that upon plaintiff's showing the origin of the fire on defendant's premises, there is a presumption of negligence of defendant in starting |