*1 qualified and Nuessle, duly appointed retired and judge W. L. a tlie made court, adopted of tlie supreme commissioner .and the court. and decision of opinion JJ., J., Burke, Christianson
Morris, Grimson, C. concur. J., did not participate.
Sathre,
[File 7220] No. OF FARMERS HOME MUTUAL INSURANCE COMPANY Corporation, Appellants MEDELIA, MINNESOTA, al, et Corpora- v. COMPANY, GRAND IMPLEMENT FORKS Respondent. tion,
(55 315) NW2d *2 Sept. 30, denied October 3, Rehearing 1952. Opinion filed Robins, Stokes, Gillig, Vaaler é Davis Lundberg, Day, Lyоns, é for appellants. *3 respondents. é for
Burtness Shaft/ plaintiffs, companies, J. In this action all insurance Burke, right sought, subrogation, under their to recover the from paid damage Poppler defendant for the losses fire Piano and Company. plaintiffs complaint alleged Furniture In their damage,' paid right fire thereof, losses because their of sub- rogation damаge proximately and that the had been negligence defendant. In of.the answer the its defendant ad- allegations complaint except all .of the mitted those relat- negligence ing proximate negligence and cause. The issues of proximate and cause were therefore the issues in the case. jury Trial of the action before a resulted in a verdict plaintiffs judgment defendant. After the verdict moved for non obstante the alternative for new trial. motion was This plaintiff appealed denying denied has both from the order judgment. motion from the specifications sufficiency The error relate first, to the evidence, second, instructions, third, to the admission land rejection argument of evidence, and fourth, -to the of counsel. specification- direct "Weshall our attention first to the that the contrary verdict evidence. .the shop started in machine located place floor of defendant’s where second business and was de- engaged repairing fendant in the business of and tractor tractors parts. shop approximately dimensions 50 feet were running, 100 feet with the shorter north dimension from against shop Located south. the east wall of what *4 high known the test as bench. This bench 31 and was inches 12 long. shaped feet On the of the south end bench was an L test panel along right wall, which extended the at a east and then angle panel across the south side of the bench. was to This 2-1 high testing 3 feet and various contained instruments for elec- equipment. Immediately of, trical south the the test bench in shop southeast corner of the were the electrical switches, fuses ampere and meters. There were one switch, 400 three 100 ampere ampere fuse and boxes sevеral and -30 fuse boxes. lights, power There were three for meters, one one for and one immediately for the elevator. theOn test bench, north of the panel plate drying test was an electric which uséd for was arma- generators the for motors and coils of electric and field ture might eliminating to in- he due purpose circuits which short of exposed heating plate had unit. electric an moisture. ternal This heating was a rec- it, and inches above unit, about the Over li upon- piece two fire bricks tangular of iron sheet rested which plate. vertically electric each side the were one on of set which piece of iron. on this sheet to dried set which were be Coils .were arc-welder, an which was north of the bench was the end test On power line -which ran above the test electric the connected shop. along wall of the the east bench testimony origin the The of the fire is evidence to the as plaintiff’s the Hulett the At time witness, Hulett. employ- employee left that was an he of the defеndant but had day had come ment before trial. On. -of the fire the the he morning. first that work o’clockin the His tasks at about'seven procedure, day generator were to and a clean motor. ordinarily cleaning gen- shop, in and- followed motors this apart, gasoline, parts take the in erators, was them wash paint dry during washing with a brush, brush them the small jet. place with them metal over them an áir and then on the sheet plate might any within the electric eliminate moisture be washing coils. at test bench in a metal was done the pan approximately In 4"x4"xl2" was dimensions. pan into the bottom of the at was a drain which was one end projected plug stopper. stopper This about inserted threaded pan. an inch the bottom of the In the test bench was below .depression placed'when projecting plug which the into pan always pan therefore, -was 'use. This while movable, occupied place Hulett’s same the test bench. pan plate from the hot distance electric
always but final of that distance cоnsistent his estimate than it was not less four nor more than feet. About six pints put pan parts into when were two were pan -washed. This amount filled the between one third to be morning half full. Hulett first washed fire, one On placed jet parts them motor, dried them with the air plate. proceeded gen- hot then to clean the electric He over párts just gеnerator He from erator. had removed the *5 pan noticed the fire at the end of the test bench. when he south explosion. rapidly moved was no flash flames There pan along Hulett to remove before it north tried bench. pan caught fire but he unsuccessful. When the ignited apron caught burned. fire, he was Hulett’s question spread “Tell from was asked: us how pan.” I seconds, Hulett “For a didn’t see much answered: few anything, myself. getting It fire out on went on the bench, along and it it went the electric line to the arc- seemed me welder which the other sat on end of bench.” On cross- examination he fire first came testified: “When the there on the away got I from it I bench, I noticed as backed after on fire that, right I there noticed seemed have a wire about the been wall, you coming following could see like it out, smoke some- thing.” coming
Q. “Smoke from the conduits?” right say.” A. come out of the seemed fo it hard to wall, “If respect With to the are-welder stated: he “It into burst flame.” you gas?” attempted
Q. “Before or after to remove thе just A. “It was after.” you approxi-
Q. “Did notice the arc-welder at the same time or mately you your the same time that there noticed flames right?” just may sir,
A. I “No it little believe after. I not have was. though.” noticed when it first started you Q. “But-when did notice it-what was its condition?” A. “It burning seemed be all blue. It was not red it flame, blue;” was sort of coming
Q. “Smoke from it?”
A. “Yes.” employee, shop
Hulett’s fellow who was in the Pound, whеn putting the fire was assisted him in discovered out fire on his person. attempted Both extinguish Pound and Hulett then extinguishers. with employees fire ground up Other came from help. extinguishers floor to There were seven fire shop, extinguisher one awas carbon dioxide and the rest were
183 extinguishers Pyrene. expend- When the contents of these were employees shop. checking fire, all of without left the ed spread damage place the fire and caused to the of Thereafter plaintiffs’ insured. of business
Upon plaintiffs contend that the fact that the tins evidence negligent gasoline, defendant’s use of was fire was law. On other hand the as matter of defendant established says proof legally proximate to is insufficient establish permit proximate of issue cause cause or to submission of jury. to plaintiff's proving have the burden of that defendant was
responsible negligent act and that act some such injury. (Negligence, 285) of 38 975; cause their Am Jur sec. 65 209) (Negligence, 208, 964, CJS secs. 970. proof question
Here there is no but that the aof act negligent part on the the defendant sufficient. The critical issue is negligence whether that shown to be actionable evidence establishing proximate injured it as the cause the fire which plaintiffs’ insured. plaintiffs’ theory
As stated in their brief as to causation is as The witness, follows: ITulett, “first noticed on the test- ing right, general vicinity plate to his bench, in the of the hot soaking, objects gasoline . the witness brushing . in . paint them with a paint off brush. We all know that the use of a gasoline vigorously soaked in brush such if brushed will carise droplets gasoline fly dissipate into the air and to them- vapor. knowledge vapor selves as It is common that this or these droplets highly are inflammable. didn’t Hulett- actually plaintiffs see start. Therefore are unable to produce actual evidence as to the cause of the fire. We could only supply physical Mr. Hulett’s as condition present up in the actual situation which was time the-fire Appellants was first observed. contend that the doctrine of res loquitur ipsa plaintiffs is available to the if in an action basеd negligence positive lacking evidence is as to the actual mo- tivating of the.fire, source instance.” clearly theory principle
Plaintiffs are in error their that the loquitur ipsa proximate of res is available to establish cause. 184 cases,
In
where
proper
proximate cause is established,
the doc
loquitur
trine
res
into
ipsa
comes
play
establish prima
facie
proof
negligence.
doctrine “has no application cause and
proximate
does
with
dispense
the requirement
the act or omission on which defendant’s liability is predicated
be established as the
cause
proximate
of the injury complained
.”
of;', .
.
65
(Negligence,
CJS
sec. 220 (8)
1011. In
b)
Orr v.
Light
Des Moines Electric
Ia
Co.,
1149,
560,
NW
it was
*7
(p.
said
“.
562)
.
.
doctrine of res ipsa loquitur does not
raise any presumption
to what
as
did occasion the injury, hut,
after the evidence has
established
which
thing
did occasion
then,
under certain
injury,
circumstances,
the doctrine will
raise a presumption
negligence.”
of
.See also Pine v. Rizzo, 186
Old
P2d
85,
17;
96
Fix v. Pennsylvania Pоwer and Light Co., 346
Pa
31 A2d
598,
114; National Hotel Co. v.
123
Motley,
SW2d
(Tex
461
Civ
Starks
App);
Food Markets
Elv. Dorado Refining
Co., et
156 Kan
al.,
134 P2d
577,
1102; Little v. Lynn & Marble
head Real Estate Co., 301 Mass 156,
In this case,
plaintiffs
state, positive direct evidence as
cause of the fire is lacking. Such proof, however,
is
If the
necessary.
evidence of circumstances will
a
permit
rea-
sonable inference of the
cаuse
alleged
injury
of
and exclude other
of
equally' reasonable inferences
other causes, the proof is suf-
ficient to take the ease to the jury. 65 CJS (Negligence, sec. 244)
1091, 1092.
If on the other hand, plaintiffs’ proof
such
that
it is
equally probable
was
to a
injury
due
for
cause
which
defendant was not liable a
facie case
prima
not established.
is.
Meehan
Northern
v. Great
ND
Ry. Co., 13
101
432,
183;
NW
v. Andrews, 12 ND
Balding
267, 96
305;
NW
Heather v.
City
Mitchell,
281, 198
47
353 ;
SD
NW
Roebuck
Sears
& Co. v. Scrog
140 F2d
gins,
718; Ingram v.
Ala
Harris,
246, 13
48;
So2d
244
Law v.
197
9
Gallegher,
A 479, W.
Harr.
W.
189 (39 Del); South
ern Grocery
Greer,
Stores v.
68
23
App 583,
484;
Ga
SE2d
Potter
Co.,
v. Consolidated Coal
276
124
Ky 404,
68;
SW2d
Ingersoll
v.
Bank of
wholly Hulett. The witness, theory circumstances which are consistent with the that negligent generator was use of are: parts pan containing pints gaso- in a were cleaned about two upon at a line test bench which was also locatеd, about four feet pan, plate exposed distant from the an electric hot with an heat- ing process; cleaning brush was unit; used that, parts gasoline they after the were cleaned with were dried with jet placed drying upon rectangular an air then further one-eighth inch supported metal, sheet thickness, was directly bricks and over, and аbout an inch and a half plate; hot above the that when the Hulett, first witness, noticed part the whole south fire, end the bench, the on which the ’ ‘ plate located, hot fire. *8 testimony the other hand On Hulett’s was that there was no ex- plosion possibility gaso- flash. This fact eliminates the that vapor ignitable density along line of flowed the bench, from рan containing gasoline, plate, the to the hot if for it when had, vapor ignited plate, the at the hot there have would been an in- pan. stantaneous to flashback the The other theories of how might gasoline the of entirely use have caused the fire rest on speculation. For instance it is said that the brush that was used cleaning might propelled drops gasoline in have of over to the plate. possible hot For be it necessary would have been generator parts for pan Hulett to the remove from the and then plate the brush toward direction in which the hot was located. There is no evidence in the record as to the how brush was used any if and inference brushing is to be made as to the manner of probable parts it would seem more that the would be brushed whil¿ gasoline away immersed the so that the fluid would float dislodged by the dirt theory the brush. The other advanced gasoline might as to how the use fire is that have caused the they parts gasoline remaining after the motor on the residue jet, might sufficient, have when an air been dried with had been square placed iron above the hot parts sheet were on vapor proper density ignited plate, be a volatilize into improbable, highly by be for the an would event the heat. Such jet gasoline the a volatile air that substance as reason, with practically if all of the from removed all nоt have would they placed parts over the heat. were before testimony in- Hulett, of the is witness, other There is any theory that the fire the use with consistent away gasoline. that This is as he backed from the along went also went the electric on the bench and bench on the other end of the to the arc-welder which sat bench, line right you а wire' wall “there seemed be and about following coming something. it out could see smoke like was right come out of the wall.” “The It seemed arc-welder was burning a blue flame.” with immediately upon after the fire almost was observed
Thus, already that it was in the east wall bench, evidence building observed. The fact was also that the smoke as it came power suggests line, from wall follow electric seemed to point ignited had it that the heated to the where line the wall. already burning fact that the welder a with blue flame suggests heating first it, when the witness noticed that the could have a short wires been causd circuit the welder. But might cause of the fire in the whatever the wall have been, evidentiary important fact there fire in the wall a after it A few was discovered on the bench. seconds immediately pene- have noticed would bench would been in a to within wall few seconds. A fire within wall trate spread considerable time could smoulder before it was *9 probable it is much more that the bench noticed.' Thus was ignited by the fire from thе than it that the fire wall, is in the the came from bench. wall
Taking of the into the fire all facts not consideration, did pan gasoline, typical gaso- a at the that the fire not start explosion vapor fire in that no back to the line there was flash coming pan shop that smoke ont of the east wall bench, within a few.seconds after was noticed on the we probable, probable if that it is at least as more are satisfied not by fire a circuit that the was caused short or some other unknown responsible not cause for defendant has been shown than by negligent gasoline. that it was use Under plaintiffs prima therefore, not made a rule above stated have out Accordingly, jury dismissing facie case. the verdict of the action was correct. judgment under
Since the evidence and the law the entered properly is the one which could entered, have been there is specifications judg- no need consider other of error. The ment the trial court is affirmed. J.,
Morris, C. and Christianson and Grimson, JJ., concur. (on petitiоn rehearing). Appellant peti- J. has Burke, rehearing petition for a tioned case. this His shows that he opinion has filed. misconstrued heretofore He states that contrary expressed many the decision is the rule times this upon bearing “that where the court, facts the issues are in dis- pute and the evidence offers room for a reasonable difference of opinion jury.” for the issue is dispute.
In case the this facts are not in All facts which upon any bearing upon have cause of the defendant’s premises plaintiff’s were elicited from one witness, witness upon jury Hulett. There is no basis which a could determine testimony that this witness’s observations were more accu- any they resрect rate in one than were in others. upon
Plaintiff’s case must therefore or fall stand this witness’s testimony. entire We have said reasonable inference premises from this is that the fire on defendant’s re- proven sulted from a cause for which defendant not re- sponsible and that this inference at least as if reasonable not more rеasonable than an inference the fire was caused negligent gasoline. state, use With evidence prima established, facie case cause the fire was *10 upon a verdict evidence could based such
because be reached conjecture guesswork by pure part jury. on the , rehearing petition for denied. .
(cid:127) Morris, C. J., JJ., concur. and Grimson and Christianson, J.,
Sathrb, did participate.
[File 7252] No. Engstrom, Respondents and Ella E. ENGSTROM GEORGE Appellants. BETTY LARSON and R. Larson, v. C. (55 579) NW2d