Peterson v. Tidewater Power Co.

*246 Walker, J. We are of tbe opinion that tbe testimony of tbe witnesses tended to show that before tbe defendant’s servants entered tbe cottage for tbe purpose of connecting tbe bouse fixtures with tbe main outside, so as to furnish a supply of gas for domestic uses, Mr. Peterson, one of tbe plaintiffs and owners of tbe cottage, bad gone into it and upon leaving tbe cottage be securely locked and fastened tbe same, and there was no fire in there. It further appears by tbe testimony that there was nothing in tbe bouse that would cause a fire, until tbe defendant’s employees entered it to do tbe work tbe defendant had ordered them to do. Soon after tbe workmen bad finished — or supposed they bad — fire broke out and consumed tbe cottage. No one, so far as appears, entered tbe building from tbe time tbe workmen left it until tbe fire was first discovered, by neighbors, coming through the weatherboarding and tbe roof., A door of tbe kitchen — where defendant’s servants bad been working an hour or two before, at tbe gas meter — was broken open and flames “were coming out of the gas pipe of tbe meter in tbe kitchen,” with a hissing sound. Tbe kitchen was so full of smoke that another witness could not tell where tbe flame was coming from. Tbe fire was in that part of tbe bouse, or kitchen, where tbe work bad been done "an hour or so before. Plow long it was after tbe workmen left tbe building and tbe first appearance of tbe fire was not definitely fixed, but it was not so long as to exclude altogether tbe reasonable- inference, which tbe jury could draw, that tbe cause of tbe fire, and the only probable cause, under tbe circumstances, was some negligent act committed by tbe workmen, in connecting tbe pipes. McRainey v. R. R., 168 N. C., 570. There was some evidencé that they used matches in making tests to discover if there was any escaping gas, and tbe jury, under tbe evidence, would be warranted in finding that tbe fire was started by tbe careless handling of tbe matches. It was competent and proper for tbe jury to consider tbe testimony of Hufbam and Burt Kite, and other testimony of a similar kind, as to bow the work of connecting tbe pipes, and especially tbe testing of them, was done, as affording some evidence in support of plaintiffs’ allegation and contention that tbe fire originated in tbe house from some cause attributable to tbe manner in which tbe work was done by defendant’s employees, or to their negligent conduct. We are fully aware of tbe rule stated in Byrd v. Express Co., 139 N. C., 273, that tbe proof of negligence causing damage, must be of such a nature as to reasonably warrant an inference of tbe fact required to be established, and must be more than merely conjectural, but we do not think that tbe evidence in this case falls within the class which we there excluded as insufficient to be considered by tbe jury, as there is some testimony here which reasonably tends to prove the act of negligence. There is evidence from which tbe jury could reasonably infer that all *247 other causes for the fire bad been eliminated, leaving none but those attributable to defendant’s want of care, or that of its employees, which is the same thing. Our last observation is an adequate answer to the position .taken by the defendant that there is no proof of the’origin of the fire, or any which tends reasonably to show that it is imputable to the defendant’s negligence, or that of its servants engaged at the time in doing the work of connecting the pipes in the house for it, and the cases cited by the defendant in its brief to sustain its position are not applicable to the facts of this case, while the principle of law stated in them is admitted to be correct. There was no error in the ruling of the court by which the tax lists, as evidence of the true value of the property, were excluded. Williams owned the property when the lists were made up, and not the plaintiffs. It would be competent to show any estimate of its value made by the plaintiffs, but that was not what was proposed to be done. It was therefore hearsay (res inter alias acta), and incompetent. Ridley v.. R. R., 124 N. C., 37; R. R. v. Land Co., 137 N. C., 330; Hamilton v. R. R., 150 N. C., 193; Powell v. R. R., 178 N. C., 243, at p. 249. What is said in the case last cited, at page 249, is pertinent: “The court excluded the circumstances that where the official board of valuation had assessed property at a higher rating after the alleged injury, the then owner, ancestor in title of the present plaintiff, appeared before them and endeavored to have same reduced. So far as the action of the board of assessors was concerned it has been generally ruled irrelevant on the question of valuation. Hamilton v. R. R., 150 N. C., 193. And as to the action of the plaintiff’s predecessor in title, his action as indicated tended to favor his own position on the issue, and its exclusion could in no sense be held to have prejudiced defendant’s case.” This fits our case exactly. The estimate of the witness Peterson, as to the value of the property destroyed, was permitted to be considered by the jury, not for the purpose of showing that the old cottage and the new cottage built on the same site were of the same value, but a substantial identity in the construction of the two having been first shown, it was allowed to go to the jury merely as a circumstance, to be considered by them, in finding the amount of loss or damage, and admitted, as it was, with this restriction, we'think it was competent. The learned judge carefully guarded his ruling by requiring that the two buildings must have been substantially alike, in order for them to consider the value of the one as a circumstance bearing upon the value of the other, and not as being of the same value. This evidence was allowed to be considered by the jury, we suppose, upon the authority of Belding v. Archer, 131 N. C., 287, and *248 Powell v. R. R., 178 N. C., at pp. 248 and 249, citing R. C. L., pp. 175-176. Sucb evidence, when confined witbin its proper limits, should not be objectionable, as said in tbe last cited case. But tbe witness did not answer tbe question, nor are we informed wbat bis answer- would bave been if be bad been permitted to answer tbe same. It was therefore harmless, as we have so often held. We do not see bow tbe rules of tbe insurance companies relative to placing insurance on beach property was at all relevant or competent. Tbe other exceptions are without any merit, and, upon tbe whole case, after a careful review of it, we find no ground for disturbing tbe judgment of tbe court below. No error. Stacy, J., took no part in tbe consideration and decision of this case.