Aрpellant Hardware Mutual Insurance Company issued a fire insurance policy on a building located in Tulsa, Oklahoma. A fire occurred, and Hardware as sub-rogee sued appellees Tibbs and Lukken on the theory that their negligence was the proximate cause of the fire. A jury found for the appellees, and Hardware appeals.
Hardware first complains of the court’s refusаl to direct a verdict or grant judgment n. o. v. in its favor. This means, of course, that Hardware has the heavy burden of convincing us that actionable negligence is the only permissible inference which can be drawn from the established facts. Christopher-son v. Humphrey, 10 Cir.,
The insured building was a corrugated steel Quonset type of structure. One of its doors was damaged when struck by a truck and Lukken contracted to do the repairs. He assigned his employee Tibbs, a welder of 15 years experience, to do the work which consisted of the removal and replacement of a steel door post and adjacеnt steel wall sections. The interior of the building was insulated with a foil back material which covered the ceiling and came down to some extent on the walls. The foil back was visible through chicken wire used to hold the insulation in place against the steel sections of the roof and walls. Above the damaged door was a piece of plywood which had been nailed to the steel studs and wаs thus separated from the wall by a space of about three inches. The insulation came down to the top of the plywood, but it is not clear whether it extended into the space between the plywood and the wall. To replace the door post it was necessary for Tibbs to use both a cutting and a welding torch at a point about two inches from the plywood. After the new post was welded into place, smoke was noticed coming from behind the plywood. Tibbs poured a small bucket of water into the space behind it but smoke continued to rise. Upon his helper’s return with a second bucket of water Tibbs decided to remove the plywood. He did so. Flames broke out and spread so quickly there was no opportunity to use the second bucket of water. The insulatiоn contained a highly inflammable asphalt adhesive, and the fire spread through the insulation to the rest of the building causing extensive damage to the contents.
Testifying as a recognized expert 1 , Tibbs admitted that to determine the hazard of fire a welder should know what materials are used in a building; that he did not inspect the insulation to determine its inflammability; that he did not inspect the area behind the plywood ; that the only fire fighting equipment he had аt hand was a small bucket of water; and that he did not “ * * * give any type warning at all to any representative of the R. C. Cola Company [the lessee of the insured building] as to any possibility of fire”. Tibbs also testified, however, that in his experience with insulation of this type he had never seen any of it burn; that there was nothing about this foil back material to indicate it would burn; that in his opin *11 ion as an expert there was no “potential or possible fire hazard” at the work site except some pasteboard boxes which he removed; that in his opinion it was unnecessary to remove the insulation at or near the work site; and that a bucket of water to put out “smudges” and “smolders” is “all you need in welding”. Lukken also testified as a recognized expert stating that in his experience working with and around insulation he had nеver found any that was inflammable, and that there was nothing about the appearance of this foil back material to' indicate it was inflammable.
"Tn harmony with the allegations of its complaint Hardware’s motion for directed verdict or judgment n. o. v. was based on the admissions of Tibbs which we have detailed to the effect that he did not take certain precautions in the welding operation. This, sаid Hardware, was negligence as a matter of law. In its post verdict ruling on the motion the trial court took due note of Tibbs’ testimony as to “the manner in which the work was performed”, but he also observed that “* •>:- * plaintiff did not offer any evidence that other welders under the same circumstances would have performed the work in a different manner or would have taken any other precautions.” He concluded that “ * * * the jury could have found defendants exercised ordinary care, or the jury could have found under the evidence, that the fire was not foreseeable by a reasonably prudent welder, because of the evidence to the effect that insulation usually does not burn.”
On appeal Hardware repeats its argument that the uncontroverted evidence of Tibbs’ failure tо take the suggested precautions proved negligence as a matter of law. 2 In this connection it seems to argue that the case law establishes a legal standard of care or conduct requiring that the precautions be taken. 3 Putting the ease law aside for the moment and looking solely at the facts as detailed, we are unable to say that all reasonable men would сonclude that those facts constitute a failure to exercise ordinary care. On the contrary, how a prudent welder would proceed to work in a steel building insulated with a material thought on the basis of years of experience to be non-inflammable seems to us to be eminently a question for the jury. Certainly we do not know how a prudent welder would have proceeded in the samе or similar circumstances. Thus, unless the Oklahoma case law can be said to establish a standard of ordinary care requiring welders to take the suggested precautions under all circumstances, the standard of ordinary care was properly for the jury. We proceed to consider the case law.
In the Oklahoma case of Independent-Eastern Torpedo Co. v. Price,
Nor do the cases from other jurisdictions, cited and relied upon by Hardware, support its thesis that the court should have decreed negligence as a matter of law. See Wood v. Becker Welding Shop, et al., La.App.,
Hardware also relies on Restatement Torts 2d § 289, Comment j, to the following effect: “Recognition of Risk. It is not necessary that the actor should realize that the circumstances surrounding him are such as to make his conduct likely to cause harm to another. It is enough that he should realize that his perception of the surrounding circumstances is so imperfect that the safety or danger of his act depends upon circumstances which at the moment he neither does nor can perceive. In such case it is negligent for him to act if a reasonable man would recognize the necessity of making further investigation.” While Hardware emphasizes the first part of this statement, the test is plainly stated in the latter part. As applied to our case, it is whether a reasonably prudent welder “would recognize the necessity of making further investigation.” And, we have already suggested that question is for the jury unless the cited case law dictates otherwise.
Finally, Hardware seeks to invoke res ipsa loquitur which, as recognized and applied in Oklahoma, simply raises a presumption or inference of negligence upon a showing that the accident does not ordinarily occur in the absence of negligence and that the defendant was in control of the instrumentality which caused the accident. See Furr v. McGrath, Okl.,
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This brings us to Hardware’s second ground for reversal, i. e. that the court erred in not granting its motion for a new trial. Reference is first made to the refusal of the court to give certain requested instructions, and to certain other instructions which were given by the court but are said tо be erroneously inconsistent. The requested instrúctions have not been brought forward in the record and they form no basis for review here. See Campbell v. Clark, 10 Cir.,
Hardware did, however, specifically object to the instruction on proximate cause which told the jury, “For an act of negligence to be deemed the ‘proximate cause’ of an accident such as a fire, the damages sustained as a result thereof must be shown to have been such as could have been reasonably foreseen by a prudent person in the exercise of due care, although it might not have been specifically contemplated or anticipated.” As we read, and we can only hope the jury understood, this language, it simply told them that a negligent welder is responsible for all damages which a prudent welder would have foreseen even though the defendant welder did not in fact foresee them. It thus required the jury to find that a negligent prudent welder, if indeed there be such, would have foreseen the damages that actually occurred. The objection below and contention here is that the instruction given was too restrictive in that it did not sufficiently inform the jury that proximate cause requires only foreseeability of fire and not foreseeability of the magnitude of the fire, i. e. foreseeability of some damage, not foreseeability of the damage which actually occurred. Hardware points out that the appellees introduced evidence on the quickness with which the fire spread, and argues it was, therefore, incumbent upon the court to clearly state that foreseeability of the magnitude of the fire was not requisite to a finding of proximate cause.
This contention takes us into a thorny and, we think, confusing area of Oklahoma tort law. See the comprehensive and provocative review of the case law in 19 Okl.L.R. 3, pp. 348-352. We start, of course, with а negligent welder, for the application of proximate cause presupposes negligence. And, we must also proceed on the legal premise, contrary to Palsgraf v. Long Island R.R.,
Application of the hindsight test, or for that matter the Polemis test, would lead us to a reversal, since as we have interpreted the instructions given they told the jury to apply the Wagon Mound test. The difficulty lies in оur inability to say with assurance that the Oklahoma court in Sturm v. Green, supra, intended to repudiate foresight as an element of proximate cause or whether it intended to retain foreseeability or some degree of it. As we have seen, both the Wagon Mound test and the Polemis test (tests 1 and 2) find support in respectable authority in Oklahoma and elsewhere. The Oklahoma court in Sturm stated that thе rules of proximate cause would be applied “ * * * in the light of prior decisions which require a degree of foreseeability as expressed in * * * Oklahoma Nat. Gas Co. v. Courtney,
Hardware finally complains of the trial court’s refusal to permit impeachment of two of appellee’s witnesses by cross-еxamination to show that they had settled claims with the appellees growing out of the fire. In refusing to permit such cross-examination the court stated that “ * * * the cases that the court has before it reveals that it would be against the clear rule of authority in the bulk of cases to allow such testimony since the Courts encourage compromise settlements and do not allow such comprоmises to become evidence in the case.” The court also was of the opinion that these witnesses’ testimony did not dam
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age Hardware’s case. Hardware relies on Anno.
The judgment is affirmed.
Notes
. Tibbs was the only witness called by Hardware.
. At the conclusion of Hardware’s case, appellees demurred to the evidence. The demurrer was overruled. It is noteworthy that in his argument on the motion Hardware’s attorney stated that “At least it is a jury question as to whether he [Tibbs] took the necessary measures”. and that “I don’t think there is any question that we have made two or three very good jury issues in relation to this thing”.
. Hardware does not invoke any stаtute or ordinance to set the standard of care. It refers only to case law.
. See also Green, Rationale of Proximate Cause.
. One of the witnesses was working in the building at the time of the fire. His testimony related to the speed with which the fire spread. The other witness was the president of the corporation leasing the building at the time of the fire. His testimony related to who owned the building, whether he and the owner discussed the inflammability of the insulation prior to the fire, and whether he or the owner retained Lukken to repair the damaged door.