222 Pa. Super. 7 | Pa. | 1972
Opinion by
Appellee, Connelly Containers, Inc., brought an action in trespass in the Court of Common Pleas of PhiladelpMa, against the Pennsylvania Railroad Company (now Penn Central Transportation Company) claiming damages for the destruction of its Bala-Cynwyd corrugated box factory by a fire which occurred on May 24, 1965, allegedly as a result of negligence on the part of appellant. By agreement of the parties the issue of liability was tried before a jury in May, 1970, the Honorable Joseph L. McGxynn, Jr., presiding. The jury returned a verdict for appellee. Judge McGlynn entered judgment for appellee following the denial of appellant’s motions for judgment n.o.v. and for a new trial. On the date that the judgment was entered the parties stipulated to damages of $6,000,000. Appellant appeals from this entry of judgment.
Appellant contends that (1) the lower court should have directed a verdict for appellant on the ground that there was no evidence from which a jury could reasonably conclude that appellant provided the source of ignition for the fire at appellee’s plant, (2) the lower court erred in submitting each one of three possible theories of liability for consideration by the jury, (3) the lower court erred in refusing to charge the jury that appellee was bound by certain evidence which it introduced, and (4) the lower court erred in admitting
The significant facts in this case are as follows: The fire broke out shortly after 4:00 a.m. on May 24, 1965, and rapidly spread throughout the manufacturing area of appellee’s plant, eventually destroying that portion of the plant. Appellee produced expert and other testimony which indicated that the fire had originated in a boxcar loaded with cornstarch. This car had been delivered into the plant by appellant two nights before the fire.
Appellee sought to develop the theory that the cargo of the boxcar had been ignited by appellant’s employees during the making of repairs to the loaded ear in appellant’s yard at Enola, Pennsylvania, near Harrisburg, and that because of the peculiar nature of cornstarch, the fire had burned undetected for nearly six days and then erupted, raising the temperature of the car and igniting rolls of paper next to the car by radiant heat.
The boxcar in question had been loaded in Iowa with 840 one-hundred pound bags of cornstarch piled chest-high on cardboard pallets called “slip sheets”. The car was transferred to appellant in Chicago, and appellant placed the loaded car in its repair yard at Enola, prior to delivery to appellee, to do certain repair work on an extension of the metal running board at the brake end of the car. Appellant admitted that the repair work involved heating and welding, but denied that its employees had ever entered the car. After the fire, however, appellee’s expert, Everett Chapman, discovered a two and one-half inch long welding rod
After the repairs at the Enola yard were completed, the car was transferred to appellee’s Bala-Cynwyd plant, where it was placed on a siding which ran inside the plant along the full length of one wall. The car was spotted adjacent to the area where rolls of paper used in manufacturing were stored. On the date of the fire, rolls of paper were stacked vertically to a height of seventeen feet along the length of the boxcar, within several inches of the car.
Nothing unusual was observed until the outbreak of the fire. A Burns security guard passed by the car approximately forty minutes before the fire, observed its open door adjacent to the paper rolls, and noticed no sign of fire, heat, or smoke. None of the eyewitnesses could state precisely where the fire had started, but a number of the witnesses testified that the fire was in the immediate vicinity of the boxcar and burning the rolls of paper adjacent to the car. Several witnesses testified that they observed a “red glow” around the car and inbetween the car and the paper rolls.
Appellant’s first contention is that the case should not have been submitted to the jury because the evidence was insufficient to establish that appellant provided the source of ignition of the fire. This contention clearly cannot be sustained. Not only were there a number of eyewitnesses who placed the origin of the fire at the location of appellant’s boxcar, but appellee also introduced expert testimony which indicated that the fire had started within the boxcar itself. Appellant did introduce contrary expert testimony, but
Appellee’s experts testified that they could find no other source of ignition than appellant’s boxcar, that their examination of that car and the remains of the plant indicated that the fire had actually started within the boxcar, and that this fire was started either by the welding stub found inside the car or by heat applied to the outside of the car during the making of repairs to the car by appellant. There was further testimony that starch could be made to burn, that it could have burned undetected for the six day period or for an even longer period, and that piles of the starch had been observed at the site of the fire burning in the same manner as indicated by appellee’s experts.
The Supreme Court of Pennsylvania recently considered a case in which the defendant argued that the evidence was not sufficient to sustain the verdict because it was based on “conjecture, guess, or surmise.” That case involved a window which blew out and injured the plaintiff. Plaintiff introduced expert testimony to the effect that the doors of the premises were improperly constructed so that a high velocity wind would be funneled right into the doors, pushing them open and exerting a pressure on the inside walls and ceilings sufficient to blow out the window. The Superior Court reversed the judgment for the plaintiff and entered judgment n.o.v. for the defendant. Our Supreme Court reversed and reinstated the award for plaintiff: “This ease is ruled by Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A. 2d 896 (1967), where, quoting from Smith v. Bell Tel. Co. of Pa., 397 Pa. 134, 153 A. 2d 477, 479 (1959), we said at page 38: ‘A variety of formulae for determining the sufficiency of circumstantial evidence to sustain a vex’dict may be found, including: “such as to satisfy reasonable and
Appellant’s second contention is that even if the evidence were sufficient to allow the case to be submitted on any one of the theories offered by appellee, the evidence was not sufficient on each of the theories, and the jury therefore could have brought back its verdict on the basis of one of these insufficient theories. As stated above, we believe that there was sufficient evidence for the case to be submitted to the jury on either (1) the theory that the welding stub found in the car had been allowed to enter the car during the course of repairs and that this stub had ignited a slow-burning fire in the starch at the brake end of the car, or (2) that the welding and heating done to the outside the railroad car created sufficient heat within the car to ignite the starch. It is appellant’s contention that a third theory of liability was submitted to the jury by the trial judge, and that this theory was not supported by sufficient evidence.
: Appellant’s argument rests on the following part of the trial judge’s charge to the jury: “The plaintiff also suggests to you that the railroad was negligent in riveting inside the car: — I think everybody agrees that, if you rivet, somebody has to be inside and somebody has to be outside — and that during the course of the riveting many sparks or pieces of hot metal came off
We agree with appellant that the submission of this theory to the jury was error, and that if the jury had predicated its verdict upon that theory, and if that portion of the charge had been properly excepted to by the appellant, the verdict would have to be overturned. We have no way of knowing, however, whether or not the jury predicated its verdict upon the “rivet” theory, as the jury returned a general verdict. Appellant never requested a special verdict, nor did it request that special interrogatories be given to the jury to determine what was the basis of their decision.
If we could determine that the jury found for the appellee upon the “rivet” theory, the trial judge’s reference to the “rivet” theory would constitute “basic,
Appellant’s other two contentions are that (1) appellee was bound by the admission of appellant’s answers to certain interrogatories which indicated that none of appellant’s employees had entered the car at Enola, and (2) that the trial judge committed fundamental error by permitting the introduction of portions of the deposition of appellee’s expert, Everett Chapman, who died prior to the trial. The lower court considered and rejected these arguments, and we are in accord with its reasoning. A party is bound by the testimony of an adverse party only where it is not contradicted by other evidence in the case or is inherently unreliable. Duffy v. National Janitorial Services, Inc., 429 Pa. 334, 336-37, 240 A. 2d 527 (1968); see Readshaw v. Montgomery, 313 Pa. 206, 169 A. 2d 135 (1933). In the instant case there was both circumstantial and opinion evidence that the boxcar was entered, and appellee was not bound by appellant’s denial of entry in the complete answers to the interrogatories.
Appellant’s contention that the admission of the deposition of appellee’s expert into evidence was error cannot be sustained. Appellee clearly established Mr.
For the above reasons the judgment of the lower court is affirmed.