88 Ark. 510 | Ark. | 1908
Lead Opinion
(after stating the facts). It is not shown that appellee was negligent in the manner in which it constructed the arc lights. Its servant who installed them shows that he went over the joints of the pipes with a lighted match after the fittings and pipes had been placed, and that no leak was discernible; that if there had been a leak of any consequence anywhere at that time he would have discovered it with the lighted match. True, the testimony shows that the parties in the store were unable the first two nights the lamps were lighted to light same by the pilot, and sent for the agent of appellee and informed him they were having trouble with the lamps. He responded to the call, lighted the lamps and pronounced them all right. It is not pretended that the pilot light went out after that, or that it failed •to light the arc lamp on the last night it was lighted before the fire. The proof shows that the arc lamp was lighted without any trouble on the Saturday night before the fire and burned until it was extinguished by appellant when she left the store. True, witnesses say they detected the smell of escaping gas on Saturday afternoon before the fire. But it is not shown that this fact was communicated to appellee between that time and the occurrence of the fire. Appellant shows that the pilot light had been flaring up during the week after the second night, but she does not prove that she communicated this fact to appellee. So it affirmatively appears from the evidence that appellee, when it installed the lamp and pipes and fittings, went over all and gave it a test that would have detected escaping gas, had there been any. Appellee had no reason to suspect, in the short time intervening between the last visit of its agent to fix the lamps and the fire, that the lamps or pipes had become defective, and it had no notice that such was the case if it really was. So, if it be conceded that the fire was caused by a defect in the pipe or pilot, we are of the opinion that the proof does not show that appellant was negligent in causing or permitting such defect to exist. There was no negligence therefore on the part of the appellee by which the fire was produced.
But we are still further'of the opinion that there is no evidence to warrant a conclusion that the fire was caused from escaping gas. The uncontradicted testimony of the experts as to the properties of water gas shows conclusively that the fire could not have been caused by its escaping and coming in contact with the pilot light as-charged in the complaint. The meter showed that only five hundred cubic feet had escaped through the pipe in September. Of this some must have been consumed before the arc lamps were installed. Then these arc lamps, if they burned six or eight hours before the fire as the evidence shows they might have done, would have consumed two hundred and forty or three hundred cubic feet more. So there would have been left a very small quantity, if any, of gas not consumed by the lamps before they were extinguished to have produced -the conflagration. There is nothing 'to show that the meter was '-defective; no evidence that it did not register accurately the amount of gas that escaped through the pipes. It is certain from the testimony that not enough gas escaped in this way to have produced the fire by explosion. For it would have taken 2,800 cubic feet in a room of that size to have exploded. The proof was conclusive that there was no explosion, none was heard, and the inevitable effects, had there been one, were absent. There was no general combustion over the whole store, as there must have been, had the gas escaped in sufficient quantity to have diffused throughout the store and to have ignited by contact, in this way, with the pilot. That would -have required' 17,600 cubic feet. The only other way for the fire to have been produced by escaping gas was for the gas to have escaped with such pressure in the direction of the pilot, or the pilot to have flared to such height in the direction of the gas escaping from the slit in the elbow at the ceiling, as to have come in contact. But there is no proof of this. On the contrary, the uncontroverted evidence shows that this would have been impossible. The gas only escaped from the slit with sufficient force to burn feebly, after repeated efforts to ignite it, in a flame, at most, of one-half the strength of an ordinary match, and the pilot only flared high enough to make appellant believe the lamp was lighted. So the pilot flame and the escaping gas, if any, were still some six feet apart. Gas is lighter than air. Its tendency was to rise and go out through openings, or if confined to diffuse with the air surrounding, not in a stream or in waves, but generally until the whole space is pervaded. Stich is the evidence of experts.
We are therefore of the opinion that, giving the evidence its strongest probative force for appellant (Rodgers v. C. O. & G. Rd. Co., 76 Ark. 522), it shows no more than that the ceiling above the lamp and between the lamp and the west wall was charred. It certainly does not show (though that was the expressed opinioji of appellant and some of her witnesses) that the fire orignated under the lamp, and that it burned from there toward the west wall. Such opinion is mere surmise or speculation. It has no basis of evidence to rest upon. The court therefore did not ignore constitutional limitations in directing a verdict for appellee, and thus declaring as matter of law that appellant had failed, upon any reasonable view of the evidence, to establish her alleged cause of action. The ruling is well sustained by decisions of this court. Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608; Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 447, citing Catlett v. Railway Co., 57 Ark. 527; Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593.
Judgment affirmed.
Dissenting Opinion
(dissenting). There was a slit in one of the gas pipes which emitted enough gas to burn a flame a quarter of an inch in length. There were defects in the lighting arrangement of both the pilot and arc lamps, and the pilot lamp, instead of burning constantly, would sometimes go out, and there was a perceptible odor of gas in the store room at different times after these gas fixtures were installed, and as late as the afternoon of Saturday preceding the fire early Sunday morning. From these facts it may well have been found that there was negligence in the installation of the gas fixtures. The more doubtful question is whether there was sufficient evidence that the fire resulted from gas escaped from these defective fixtures.
There was evidence tending to prove that the fire originated over one of these lamps and extended from the ceiling above it to the west wall. Several witnesses early on the scene of the fire said the ceiling in close proximity to the gas lamp was more burned than any other part of the building, and the appearance to them was that fire had originated there and spread therefrom. This testimony would, standing alone, evidently be sufficient to sustain a verdict. The defendant introduced testimony tending to prove that the fire originated on the west side of the building. This presented a square conflict, and, without the experts testifying to the properties of gas, seeking to negative the fire from that cause on scientific principles, doubtless this conflict would have been settled by the jury. The evidence shows that the ceiling of the store room was not air-tight, and there is no evidence of the extent of the openings in the room through which air and gas could escape. •
There is no evidence of the force or violence of an explosion in such a room as this when the admixture of gas and air barely reached the explosive state, say 9 per cent. gas. Therefore much, if not all, of the scientific testimony; while quite interesting, is wholly inapplicable to the precise point. Moreover, the scientific theory against gas being the origin of the fire is largely based on the amount of gas in the room as shown by the meter, and no evidence to show the accuracy or good order of the meter. . In fact, it is really based on a bill for the gas, and the bill is presumed to be based on the meter. This is too unreliable a witness to be the basis for a scientific demonstration.
The case should have gone to the jury.
