6 A.2d 892 | Pa. | 1939
This action is in trespass for alleged negligence in setting fire to and destroying plaintiff's tavern, and, on this appeal, plaintiff asks us to reverse the judgment non obstante veredicto entered in favor of defendant by the learned court below following the jury's award of $8,000 damages to plaintiff.
It appears from the evidence, viewed in the light most favorable to plaintiff, that about a year prior to the fire plaintiff had converted a rough lumber hay barn into the tavern, which was lighted by electricity furnished by defendant. Plaintiff's property was situated in Ralpho Township, Northumberland County, at the extreme end of one of defendant's branch power lines. About ten of defendant's customers were served by this same line. The fire occurred early on the morning of September 14, 1936, a few hours after plaintiff and his wife had retired for the night to their brick dwelling house near by. Before leaving, plaintiff had examined his premises and noticed nothing out of order. Neighbors first observed the burning building at about half past three or four o'clock in the morning. The fire, which began in the northeast corner, spread and consumed the entire building, and communicated across the lane, totally destroying plaintiff's barn and some small farm buildings. *77
No one knows how the fire began. The evidence relied upon by plaintiff, as tending to establish the averred negligence, is entirely circumstantial. It was alleged that the accident was due to the unsafe condition of defendant's transformer, an instrument attached to a pole seventy-two feet from plaintiff's premises, the purpose of which was to reduce the dangerous current of electricity passing through the main wire, to a safe current for household use, — the reduction being from a voltage of 6,900 to 220. There was a ground wire installed by defendant from the transformer erected on the pole for the purpose of carrying off any excess voltage and preventing the same from entering plaintiff's property. There was also a ground constructed by plaintiff, on the inside of the building, attached to a water pipe for the same purpose.
All of the electrical appliances in the building, — the wiring, the switch box, the fuse box, the conduits and everything in connection with the electric wiring and apparatus were installed and owned by Thomas J. Clark, the plaintiff. The wires were extended from the building to defendant's meter outside, and at the meter defendant connected its wires with those of plaintiff. The latter had erected on the inside of his building a sheet metal switch box in the northeast corner of the principal room, about six and one-half feet from the floor and attached to wooden boards on the wall. Directly below this, plaintiff had installed a sixty ampere fuse box. The electric wires and appliances on the inside, and to the place where they connected with the wires of defendant on the outside, were under the exclusive supervision and control of plaintiff.
On the morning of the fire, the switch box was found by plaintiff lying about six feet from the northeast corner of the property, where it had been located. When found, it was closed. It was kept by Clark in his house for a period of nearly four months, when it was taken to Bucknell *78 University and there opened by Professor Joseph D. Stetkewicz.*
In calling Professor Stetkewicz, plaintiff attempted to narrow the sole possible source of the fire to the alleged defect in defendant's transformer. That witness, however, after testifying that the presence of a beaded slit in the switch box could be attributed only to the intense heat of an electric arc on the inside of the box, frankly admitted that he could not tell whether the manner in which the box was wired produced the arc and that he could not "positively swear whether the arc that was caused . . . was occasioned by some defect of the switch that occurred inside of the house, or whether it came from the outside." The fair conclusion from his testimony is that a source within the exclusive control of plaintiff might have caused the accident.
The burden rested upon plaintiff affirmatively to prove the negligence charged by showing, first, that the fire which destroyed the building was caused by electricity, and second, that it was caused by high voltage electricity escaping from defendant's feed wire and into plaintiff's building:Seitzinger v. Burnham,
Harry Schreffler, an electrician, called by plaintiff, stated that he did not know whether there was a defect in the transformer, inasmuch as he had not seen or examined it. He testified, however, that the indications were that it was defective. His testimony is well summarized by the learned trial judge: "He further testified if there was a ground at the pole, the current would ground at the pole; it would not get into the house. Later, he stated, regardless of the ground at the pole, and the ground at the house, the current would get into the house. However, an examination of his testimony discloses the witness had in mind the ground testified to was defective or no good. Witness assumed the ground at the pole was defective." Therefore, the value of this witness's testimony rests upon the premise that the ground at the pole was ineffective, coupled with the further assumption that the transformer, which the witness had never seen, was defective and that electricity caused the fire. Plaintiff produced no evidence to substantiate such assumptions, with the result that any inference drawn therefrom by plaintiff's witnesses is worthless as evidence, and is at the most a mere guess or conjecture: Lithgow v. Lithgow,
Having failed to adduce any affirmative evidence to prove the negligence charged, plaintiff seeks to invoke the doctrine of res ipsa loquitur to establish his case. This he cannot do. We recently restated the law on *80
this subject in Norris v. Phila. Electric Co.,
Under these circumstances the action of the learned court below in entering judgment n. o. v. was entirely proper.
Judgment affirmed.
