Fahey v. Niles

Boyce, J., charged the jury in part: This is an action by Patrick Fahey against John B. Niles to recover damages to property alleged to have been occasioned by the negligence of the defendant. The plaintiff claims that his furniture and household goods were seriously damaged or destroyed by a fire on the twenty-first day of August, 1917, at his then place of residence in this city. It is conceded .that the defendant had previously purchased the house in which the plaintiff was residing; and also that the defendant, by and with the consent of the plaintiff, was having old paint burnt off the outside of the house by his employes, who, for the purpose of removing the paint, used gasoline torches. It is the claim of the plaintiff that these workmen negligently set fire to the cornice of the third story of the house and negligently failed to put the fire out, and that in consequence of their negligence, the third story of the house and the furniture therein were destroyed by fire, and that the furniture in the lower stories was very greatly damaged by falling embers, soot and water. There are five counts in the declaration averring in substance the facts thus stated. [1-3] Negligence is the basis of this action. Negligence is defined to be the want of ordinary care; that is, the want of such care as a reasonably prudent andcareful person would exercise under all the circumstances. Negligence is never presumed; it must be proved,and the burden of proving the act of negligence relied upon, to the satisfaction of the jury, rests upon the plaintiff. The [457] negligence of the servants of the defendant, if any there was, is imputed to the defendant. [4] Negligence may be proved either by direct or circumstantial evidence, and before you can find a verdict in favor of the plaintiff, it is necessary for you to be satisfied by a preponderance of the evidence that it was the negligence of the servants of the defendant, in the course of their employment for the defendant, which caused the fire and the resultant injury complained of. [5] Circumstantial evidence is where some factsbeing proved, another fact, the fact in issue, follows as a natural or very probable conclusion from the facts actually proved, so as readily to gain the assent of the mind from the mere probability of its having occurred. It is an inference of a fact from other facts proved. State v. Tyre, 6 Pennewill 343, 357, 67 Atl. 199. [6] A person using dangerous instrumentalities, such as gasoline torches, for removing paint from a dwelling house, must exercise due and reasonable care to prevent setting the builing on fire; and if such care is not used, and injury to property follows in consequence thereof, liabiltity attaches for the results of the negligence. If you should find that the damage to the plaintiff’s property was not in fact caused by the defendant or his servants, or that it was not caused by the negligent act of the defendant or his servants, or that the plaintiff suffered no damage as a result of the fire, then, of course, your verdict should be for the defendant. If, on the other hand, you are satisfied by a preponderance of the evidence that the plaintiff has sustained injury by reason of the damage or destruction of his property such as he claims, and that it was due to the negligence of the defendant or his servants as alleged, then your verdict should be for the plaintiff, and for such sum as you find from the evidence the plaintiff has actually sustained by reason of the injury to or loss of his property. * * * Verdict for plaintiff.