DORE v. BABCOCK

The plaintiff, a retail storekeeper, alleged and claimed to have proved that while the defendant, a vendor of oil from tank-wagons, was filling an oil tank in the former's store, he unnecessarily used a lighted candle in so negligent a way as to set fire to the oil and burn up the store and its contents. The jury returned a verdict for the defendant and the plaintiff appealed. It was substantially agreed upon the trial that the defendant's servant asked for a light or a candle, that the plaintiff's clerk gave him a candle without any candlestick or other support, and that the defendant's servant then lit it and used it as he saw fit. No claim was made that a lighted candle, if properly secured and placed, could not have been safely used, nor that the use of such a light for such a purpose was negligence per se. Held that under these circumstances the important question in the case, so far as the claim of contributory negligence was concerned, was not whether the candle furnished was a safe or an unsafe light, but whether the plaintiff had anything to do with the mode or manner of its use by the defendant by which alone it became, if at all, unsafe and dangerous; and that upon this point the charge of the trial court, while not absolutely silent, was obscure, insufficient and misleading. The plaintiff's clerk having testified fully as to the occurrences at and before the fire, and as to the manner of delivering and receiving oil, was asked upon cross-examination whether oil was sold from the store tank in the evening, and whether he had been instructed by the plaintiff not to make such sales. Held that these inquiries were relevant and germane to the direct examination. After this witness had been cross-examined as to why and for what purpose he had given the candle to the defendant's servant, he was asked on redirect whether at the time he furnished the candle he expected or supposed it would be placed by such servant upon the frame of the oil can. Upon objection this question was excluded. Held that in view of the defendant's claim that the clerk knew and consented to the use that was to be made of the candle, the inquiry should have been permitted. Two carpenters and builders testified as experts for the plaintiff concerning the damage done by the fire, and as to the kind of an examination they had made. Held that inasmuch as it did not appear from the record that they were qualified to give an opinion as to how and where the fire originated, an inquiry as to that on their redirect examination was properly excluded; even if opinion evidence upon that subject was admissible at all. Servants of the defendant testified that they had delivered oil to the plaintiff at divers times before the fire and had been given candles to use, and that this was known to and acquiesced in by the plaintiff. Held that this evidence was properly received to contradict the plaintiff and his wife, to show the necessity for a light, and that the plaintiff himself had instituted this practice. Upon the plaintiff's cross-examination the defendant was permitted to show that the property burned was insured, for what amount, and how much had been paid; but only to show the interest of the witness in the result of the suit. Held that under the circumstances disclosed on the record its admission for this purpose only, was not erroneous.

TORRANCE, J.

One of the important questions in the trial court was whether the plaintiff had been guilty of such negligence as essentially contributed to the loss he sustained by reason of the fire. The defendant claimed that the plaintiff had been guilty of such negligence. This claim was based chiefly upon the fact that the plaintiff, by his clerk, had furnished to the defendant's servant a candle for his use in pouring the oil into the pan. The evidence upon both sides bearing upon this point was substantially the same, and to this effect: Higgins, as he claimed, asked the plaintiff's clerk to give him a light to use in pouring the oil into the pan. The clerk claimed that Higgins asked for a candle, and that he gave him a candle without any candlestick, or other thing in which to set it, and told him where he could find a match with which to light it. Higgins then and there lit the candle and, with it so lighted, went towards the pan in which he was to pour the oil, and without any directions or suggestions from the clerk placed it how and where he saw fit. Concerning these facts the parties were in substantial agreement.

As to whether any artificial light at all was necessary, on the day of the fire, in pouring oil into the pan, the parties were not in agreement, and the evidence on that point was conflicting.

No claim was made on the trial below that a lighted candle, if properly placed and fastened, could not have been used with safety in pouring oil into the pan, nor that it was in itself a careless act to use a naked lighted candle there at all, under any circumstances, while pouring oil into the pan.

The plaintiff claimed, in effect, that the evidence in the case tended to show that if he did anything at all upon which the defendant's claim of contributory negligence could be based, it was simply the furnishing of a candle to the defendant's servant, at his request, and for his purposes, to be used by him as he saw fit in his master's business; and the plaintiff, in effect, asked the court to instruct the jury that if they found the facts upon this matter to be as claimed, he was not guilty of negligence, because he had furnished a safe light if properly used. We are of opinion that the plaintiff was entitled to have the jury so instructed, and that the charge upon this point was insufficient and on the whole tended to mislead them.

Upon the evidence in the case, about which there was no dispute, the candle furnished to Higgins was an ordinary candle, not at all an unsafe or dangerous light in and of itself. If unsafe or dangerous at all on the occasion in question, it was made so by the mode and manner of its use by Higgins, and the plaintiff claimed that Higgins in what he did in this matter was not his servant. Under these circumstances the important question, bearing upon the claimed contributory negligence of the plaintiff, was not whether the candle furnished to Higgins was a safe or an unsafe light, but whether the plaintiff, in what it was claimed he did in this matter, had anything to do with that which made the light an unsafe and dangerous one, namely, the conduct of Higgins in using it as he did; and the main error in the charge consists we think in the fact that the court emphasized the first of these questions and said little or nothing about the second. The jury were told to consider and determine this question: "Was the light, a candle without a candlestick, a reasonably safe light?" If not, they were told "it will be for you to say whether the furnishing of the candle caused or contributed to the plaintiff's loss and injury." They were told repeatedly in divers parts of the charge, that it was for them to determine whether the light furnished by the plaintiff was a reasonably safe light, and that if the light so furnished was not a reasonably safe light, and the loss resulted from that cause, the plaintiff could not recover. They were told that "whether it was the plaintiff's duty or not to supply a light, in my opinion if he undertook, either by himself or his agent, to provide a light, and his duty to provide a reasonably safe one under all the circumstances; and if he failed to so provide a safe light, and that, combined with the negligent act of the defendant's servant, caused the loss or injury, then the plaintiff should not recover." They were thus told, in effect, and that, too, more than once, that if the plaintiff furnished a candle he was responsible for the negligent use of it by one who in what he did with the light was acting as the servant and agent of the defendant; for it must be borne in mind that the plaintiff's request to charge upon this point was based on his claim upon the evidence, that in what Higgins did with the light after he got it he was acting as the servant and agent of the defendant.

It is true that in another part of the charge the court said: "I say to you the giving of a candle to Higgins may not be contributory negligence in itself, because I have already called your attention to the fact that you are to determine as a question of fact whether a candle was a reasonably safe light to provide under the circumstances. If it was a reasonably safe light to provide under the circumstances, and a light was necessary, then of course there was no negligence or want of ordinary care upon the part of McEnroe which could be attributed to his master." But we do not think this instruction, nor anything else said by the court in other parts of the charge, cured the error in question here. It left the jury to determine, as a question of fact, whether "the candle was a reasonably safe light under the circumstances," without calling their attention to the "circumstances," and without telling them that if they found that Higgins, in what he did with the candle, was the defendant's servant, the plaintiff was not responsible for that part of the "circumstances" made up of Higgins' conduct after he got the candle.

It is true, also, that in another part of the charge the jury were told, in effect, that it was the plaintiff's duty if he provided any light at all to furnish a reasonably safe light, and it was the defendant's duty to use the light in an ordinary careful manner, and that if the plaintiff provided a safe light, and the defendant's carelessness alone caused the injury, the plaintiff could recover; but this was almost immediately followed by that part of the charge already quoted, wherein the jury were told in effect that if the plaintiff failed to furnish a safe light "under all the circumstances," and such failure "combined with the negligent act" of Higgins, caused the loss, the plaintiff could not recover. The former statement in the charge was thus neutralized by the latter, and nowhere in the charge are the jury squarely and fully instructed, as they should have been, that the plaintiff, if his claims on the evidence were found true, was not responsible for Higgins' improper and negligent use of the candle after he obtained it from McEnroe.

Looking at the entire charge, in the light of the evidence in the case and the claims made by the parties upon the question of contributory negligence, we think the court failed to bring to the attention of the jury the important fact that unless Higgins, in what he did with the light, was the plaintiff's servant, the plaintiff was not responsible for Higgins' negligence. For this reason there must be a new trial.

In this view of the case it becomes unnecessary to consider the other alleged errors in the charge; but such of the questions of evidence covered by the assignments as are likely to come up on a new trial remain to be considered. Most of the exceptions to the rulings upon evidence are unimportant and require no lengthy discussion. It is questionable whether any of them, with perhaps one exception, even if wrong, would furnish sufficient ground for a new trial.

The rulings upon the questions asked McEnroe upon the cross-examination were correct. The questions were relevant and germane to the matters brought out on the direct.

So, too, the rulings made with reference to the questions put to Leonard and Conlan, the builders, appear to have been correct. As we understand the record, which is not at all clear on this point, the questions asked of these witnesses which were excluded, were asked with the view of having them testify as experts, as to how and where the fire originated. They had testified fully as to what they observed upon these points, it was not claimed that they were experts upon the origin of the fire, and thus they do not appear to have been qualified to give an opinion on this point, even if opinion evidence upon such a point is admissible, a question on which we express no opinion.

The testimony of Robinson, Ahern, and Stoddard, as to the use of lights at this oil pan, with the knowledge and consent of the plaintiff and his servants, at other times than the one in question, was clearly admissible for the limited purposes for which the court admitted it.

The question asked of Ahern on cross-examination, concerning the delivery of "Funk Oil," was properly excluded, as not germane to the direct examination.

Under the circumstances disclosed by the record, we think there was no error in admitting the evidence with reference to the payment of the insurance money. Further than this, upon this point, we have no occasion at present to decide.

McEnroe was asked, in effect, whether or not he expected or supposed when he gave Higgins the candle, that Higgins would place it and use it as he did. The defendant claimed that McEnroe in what he did was acting for the plaintiff, and knew or had reason to know just what use would be made of the candle and how it would be placed by Higgins, and therefore in effect consented to such improper use, if it was such. In view of this claim we think the court erred in excluding the question. McEnroe, under the circumstances, was entitled to show that he did not know or expect that it would be used as it was used. This disposes of all the errors assigned with reference to the rulings upon evidence.