211 Cal. App. 2d 777 | Cal. Ct. App. | 1963
This appeal is taken from a judgment rendered in favor of plaintiff in an action brought to recover damage to a building in Sacramento caused by fire. The only issue presented on appeal is as to the sufficiency of the evidence to sustain the judgment.
The building housed a series of bowling alleys. Offset against the front or western face of the building was a vertical sign pylon, holding on either side neon-lighted lettering spelling the word “Bowling.” The pylon ran from slightly below the level of the second floor of the building upward to a point a little above the outer wall of a third story penthouse atop the main structure. The pylon was
Shortly before 9 o’clock a battalion fire chief patrolling the area discovered that the neon sign was smoking. He turned in a fire alarm at 9 :04 p.m., and then went to the building to await the response of firemen. A witness who worked across the street from the building observed that the sign had been lighted and then, a little later, saw that the lettering was going out, at which time the witness noticed smoke coming out of the pylon near the lower letters of the sign. When the firemen arrived, smoke was observed pouring out of a grill above the front door and beneath the sign. The firemen went up to the room on the second floor which contained the entry panel to the pylon. Under the instructions of the chief they “axed out’’ the panel and smoke and flames poured into the room. The chief testified that when he entered the second floor with his men, he went to the panel and noticed flames behind the openings in the grill work; that when the panel was removed he saw the flames come out into the room; that at that time the whole area inside the pylon was involved
The evidence was sufficient to sustain the judgment. The fire chief was qualified as an expert witness by reason of his long experience with fires in the course of his duties as a fireman. He based his opinion as to the point at which the fire started upon his observations and his experience. His testimony, coupled with the other testimony we have related, was sufficient to sustain the implied finding of the trial court that the fire started in the area where the appellant’s workmen had been and, consequently, that it was through their negligence that the wiring system was left in
Appellant argues that its expert, a Mr. Blewett, gave testimony to such effect that it must be considered as having dispelled any permissible inference of negligence on the part of appellant’s workmen. Appellant argues that the trial judge could not disregard uneontroverted, uncontradicted and not inherently improbable testimony of the expert witness as to the point of origin of the fire. Of course, if the fire originated outside the pylon and away from the area under control of the appellant’s workmen, then there would be no basis for fixing liability for the fire upon the appellant, but we do not think that the testimony of the expert produced by appellant can be considered as uncontroverted and uncontradieted. On the contrary, as we have said, we think the testimony, other than that of the expert, as to the point of origin of the fire was sufficient to uphold the court’s implied finding that the origin was at the point fixed by those witnesses. The testimony of the expert witness of appellant, who investigated long after the fire damage had been repaired, was to the effect that, in his opinion, the fire pattern as testified to by some of respondent’s witnesses forced the conclusion the fire did not originate in that area of the building where the neon installations were; that the electrical system serviced by appellant could not generate sufficient heat to ignite a fire; that if there had been a defect in the primary side of the system before the current entered the transformers, this would probably have caused the blowing of a fuse which would cut off the power; that if there had been a defect in the secondary or high voltage side of the circuit, then even a direct short over a period of hours would not
. There is no testimony as to the cause of the conflagration except that of the two experts, and no circumstantial proof except that which corroborates their opinions. The record suggests no reasonable explanation of the five except that expressed by these experts. No question is raised as to their qualifications or their probity. Respondent merely argues that the trial judge was free to reject their testimony. Not so.”
We think the situation argued for by appellant did not exist at the close of testimony in this case and we have already stated our reasons for so holding. The testimony of Mr. Blewett as to the point of origin and as to the other matters he testified to does no more than raise a conflict with respondent’s evidence.
For the reasons given, the judgment appealed from is affirmed.
Pierce, P. J., and Schottky, J., concurred.
Retired Presiding Justice of the District Court of Appeal sitting pro tempore under assignment by the Chairman of the Judicial Council.