Fowle v. Atlantic Coast Line Railroad

CoNNOR, J. The defendant requested his Honor to instruct the jury that the city ordinance introduced by the plaintiffs did not apply to the conditions disclosed by the evidence ; that the evidence did not disclose the case of a stovepipe passing through any wall or ceiling within the language or meaning of the ordinance. As we understand the testimony, the stovepipe rested upon or was attached to the stove in defendant’s office and extended up to and entered the flue of terra cotta or fire clay. The flue rested upon and, in some way not.very clearly described, extended one and a fourth or half inch below the ceiling. At the entrance the pipe was held steadily in position by a tin collar., All of the testimony shows that the hole cut in the ceiling was larger than the flue and the space filled in with mortar. The flue into which the pipe entered passed through the roof, extending above it three and a half feet, and was “capped” or covered with a “hood.” The ordinance was evidently intended to prohibit a custom, which experience has taught to be dangerous, of passing stovepipes through walls and ceilings of wood. The word-“stovepipe” is well understood to refer, to a pipe made of either sheet iron or heavy tin, which usually connects the stove with the chimney or flue, made either of brick or fire clay or terra cotta. The evident purpose of the ordinance was to require that when a stovepipe passed through the- ceiling it should *498 be separated from tbe wood in the manner directed. The testimony of the witnesses who constructed the flue and adjusted the pipe excludes the idea that the latter passed through the ceiling, within the terms or meaning of the ordinance. The distinction between a stovepipe and a flue is clearly recognized by the act of 1905, ch. 506, secs. 17 and 20. His Honor was evidently of the opinion that the word “pipe” included both the flue and the metal pipe. He said to the jury: “If the plaintiff has shown by the greater weight of the evidence that the fire originated from the pipe or flue, and that the flue was constructed in a manner that was in violation of the town ordinance, your answer should be £Yes.’ ” He further said in this connection that by “pipe” he meant “either earthen or metallic.” In this view of,the ordinance 'the jury were compelled to find that the defendant had violated its terms. If the “earthen” flue must enter brickwork not less than four inches in thickness, etc., it was manifest that the terms of the ordinance were not complied with. We cannot concur with his Honor’s construction of the ordinance. We find but one witness who speaks of-the stovepipe extending into the flue above the ceiling. Mr. Bland says that the pipe settled and the joints overlapped; that the result was that the lower side of the ceiling became charred, and he pushed the pipe up so that it extended beyond the ceiling about six inches, this, of course, being separated from the wood by the walls of the flue and the collar. There is no suggestion by any witness that the flue was not carefully and properly constructed and secured or that the pipe was -not properly secured therein. But if the pipe was not separated from the wood in the manner required by the ordinance the defendant insisted that there was no evidence that the fire originated at the place where the stovepipe entered the flue, and that therefore such condition was not the proximate cause of the fire. His Honor told the jury that before they could fix liability upon defendant on account of the violation of the *499 ordinance they must find that it was the proximate cause thereof. The first witness who saw the fire from the outside was Dr. Tayloe, who says: “The smoke was emerging from under the roof before the blaze broke through from near the fine.” Mr. Ohauncey says: “I saw a blaze a foot or eighteen inches above the office ceiling, close by the flue.” Mr. Bland says that the fire had died down ill the stove and the office was getting cool; that he had sent a man out to get a scuttle of coal; that he came in with the coal, and before putting it on the fire he called witness’ attention to the fire; that he looked through a crack in the ceiling and saw a blaze above the ceiling, about two feet from the flue; that, as near as he could see, the blaze was in the roof, which was about fourteen or eighteen inches above the ceiling; that they used hard coal in the stove. The colored man, Knight, who brought in the coal, corroborated Mr. Bland. In this respect we find no contradictory testimony. Mr. Bragaw says “the fire seemed to be making from the space over the office towards the slant of the roof.” We fail to find any evidence locating the fire at the point where the stovepipe entered the flue. Prom the un-contradicted testimony of Mr. Bland, corroborated by the colored man, Knight, and the natural evidence, it is difficult to see how the fire could have originated by heat communicated by the stovepipe at the point of entrance into the flue. The construction of the flue, resting upon the ceiling, would have protected the upper side of the ceiling, and if the heat from the stovepipe had been sufficient to ignite the wood it would have first appeared on the lower, unprotected side. Again, all of the plaintiffs’ evidence — every witness who expressed the opinion that terra cotta or fire clay flues' are unsafe — gave as a reason: “They will crack from heat or cold and from water when they are hot.” This is the language of Mr. Powle, Mr. Bragaw and Mr. Chauncey. Not one suggests that the heat from the stove would communicate fire through them. His Honor charged the jury: “If you shall find from *500 the evidence that the ordinance introduced in evidence by the plaintiffs had been in-force since 3 December, 1900, in the town of Washington at the time of the fire, and Was passed for the purpose and intention to prevent the catching of buildings on fire in the corporate limits of the town and the spreading of such fire to adjacent buildings, and that the defendant used and operated its flue in violation of such ordinance, this would constitute negligence on the part of the defendant; and if this negligence was the proximate cause of the plaintiffs’ injury — that is to say, if the fire caught from defendant’s building by reason of the manner in which they were using their flue in violation of the ordinance, and the fire by natural cause and effect and under such conditions of wind and other surroundings as a reasonable man could have anticipated and under the conditions that existed at the time of the fire, in fact, caught — then the defendant would be liable for such damages as resulted to the plaintiffs therefrom.” Defendant excepted. The ordinance did not prescribe the manner in which defendant should use and operate its flue, but the manner in which the stovepipe should pass through the ceiling. We think, however that may be, there was error in leaving to the jury the question of proximate cause in that connection. As we have said, we find no evidence that the fire originated at the point of connection between the stovepipe and the flue. Thus eliminating the ordinance from the case, the question arises whether there was any evidence of negligence in the use of the flue — that is, whether the flue made of terra cotta or fire clay Avas reasonably safe, or, as his Honor correctly said to the jury, whether a man of ordinary prudence, having due regard to the safety of his oavu and the property of others, would use the flue (described by the witnesses) in the manner and at the place which they were used by defendant. Defendant insists that there is no evidence tending to show negligence in this respect, and that his Honor should haA^e granted *501 tbe motion for judgment of nonsuit. It is conceded that these flues were prioi' to tbe passing of tbe ordinance in general use in Washington. Mr. Chauncey says that be has taken out of bouses since that time three hundred of - these flues. He says the objection to them is that “when heat was on them they would burst.” Mr. Bragaw, who is in the insurance business, says that his opinion, backed by observation, is that fire-clay flues are not a proper precautionary measure against fires on any premises — they are liable to crack. Mr. Eowle says that he has built many houses for himself and others, that he has observed them for ten years and that he has been taking these flues out “lately.” Mr. Harding, a carpenter, examined the flues some years ago and found one of them cracked, and advised the defendant’s agent that he “needed a new one.” Mr. Phillips says that he took out the old or cracked flues and put in new ones. This was about a year or eighteen months before the fire. A number of defendant’s witnesses — mechanics and builders — express the opinion that the terra cotta flue is safe for the use to which it was put. This contradictory testimony was properly submitted to the jury. There is also evidence tending to show that defendant’s agent was notified to take the flues out. This is denied. The evidence is competent upon the question of notice to defendant that the flue was not safe, if the jury so find. The first question to be settled by the jury is whether the fire originated from cracks in the flue. There is no direct evidence that there were any such cracks. The only evidence in that respect is that some eighteen months before the fire one section of the flue was found to be cracked and taken out; that a new flue of the same kind was put in. The learned counsel for plaintiffs strongly urged before us the view that by reason of the length of the building, its extension resting on piles twenty-four feet over the water, the striking of steamboats upon its side in the slip, the running of cars and heavy trucks, the building was caused to vibrate and loosen the sections of the flue or to *502 break it. The defendant, on the other hand, argues that the fire was caused by sparks from the steamboats, etc. It is extremely difficult to fix with any degree of certainty how many fires originate. Different theories are advanced in almost every instance. The defendant requested his Honor to instruct the jury: “If you find that the flue in question was constructed by a competent builder and of safe material and in safe manner, and that the defendant did not negligently permit the same to become defective, then the court instructs you that the maintenance of the flue so constructed was not negligence, and this would be true even if you should further find that the fire originated from the flue. If you should so find, you should answer the first issue 'No.’ ” The court declined to charge the jury as requested, and the defendant excepted. "We think defendant was entitled to this instruction. It correctly states the measure of duty which the law imposes upon the owners of buildings. Persons constructing and using buildings are compelled .to rely upon the judgment of competent builders, of those who by reason of skill and experience are fit and competent to be consulted and entrusted with the erection of buildings, with arrangement for fires therein, and it may be relied upon with that degree of safety which the law requires.' If the jury found the conditions involved in the instruction, we think that no negligence can be attributed to defendant. In Parker v. Moore, 91 N. C., 275, the stovepipe was run through the wall and “the fire originated where it passed through the wall.” It was not protected in any way. The distinction between the cases is manifest. The only evidence of negligence which we find in the record is the opinion of witnesses that the terra cotta or fire clay flue is liable to crack from heat and cold. A number of witnesses express the opinion that they are safe means of carrying off the smoke from stovepipes. As we have said, there is no direct evidence that the defendant’s flue was *503 cracked, and if so, that defendant’s agent bad any notice thereof. There may be circumstances and conditions frpm which a jury could infer such defect and knowledge. Eor the errors pointed out there must be a New Trial.