Greenleaf v. Pacific Telephone & Telegraph Co.

Plaintiff, the appellant here from a judgment ágainst him in the superior court of San Luis Obispo County, charged in his complaint the burning of his warehouse and its contents by reason of the negligent act of defendant’s servant in placing and leaving a can of hot ashes and coals against the rear end of the building.

It is alleged that the rear wall of the structure, which was of boards standing up and down, was ignited by the hot and burning coals. The undisputed testimony established the fact that defendant’s janitor was accustomed to depositing ashes from a heating-stove in defendant’s building in a can or container in close proximity to plaintiff’s building, and that on the evening of the night of the fire the container was freshly filled with ashes from this stove, which had been burning throughout the day. Some time in the night the warehouse was discovered on fire. The evidence fairly indicates that the fire had originated at or near the point where the ash container was placed, and no other explanation of the fire than from these ashes is suggested. The wareroom contained cans and receptacles of gasoline, oils, and other inflammable liquid. The circumstances shown in evidence were such as to justify the submission of the cause of the fire to the jury, and we do

The ground relied on by plaintiff on this appeal is alleged error of the court in giving and refusing instructions, and in its rulings excluding certain testimony in behalf of the plaintiff. There are only two specifications which we need to consider.

[1] After the jury was correctly informed that they could determine their verdict by a preponderance of the evidence, and were instructed as to what constituted preponderance of the evidence, the following instruction was given: “Before you can find a verdict for the plaintiff the evidence must satisfy you that the fire was caused by the acts of the agent or employee of the defendant in placing hot ashes containing fire near or against plaintiff’s warehouse ; and if the preponderance of the evidence fails to satisfy you that the fire was so caused, or leaves in your mind any doubt, confusion or uncertainty as to the origin of the fire, your verdict should be for the defendant.” (Italics ours.) To what avail are the instructions as to the sufficiency of a preponderance of the evidence to support a verdict, and as to its efficacy if it produces unprejudiced conviction in their minds, when followed by the explicit direction that the degree of certainty indicated must not only be beyond a reasonable doubt, but must not admit of any doubt at all? Even in a criminal case, requiring the minds of the jurors to be satisfied beyond a reasonable doubt, this instruction would be erroneous. That it must be considered prejudicial, under the state of the evidence here, there can be no question. The learned trial judge evidently recognized the vice of this instruction as submitted to him, and attempted to remedy it by inserting the words “preponderance of the evidence”; but the mere knowledge of the jurors that they might be governed by a preponderance of the evidence was not enough, when they were told that the effect of such preponderance must be such as to remove aivy doubt as to the origin of the fire. Respondent argues that the error, if any, in this instruction, was not prejudicial, for the reason that plaintiff had offered an instruction which was given by the court, and which laid down the same rule as that objected to, as to the required weight of the evidence. We do not find it so. In plaintiff’s

[2] The second point of error which requires consideration is the ruling of the court excluding evidence bearing upon the custom of the janitor, Williams, in pouring water on the hot ashes before placing them in the container adjacent to plaintiff’s building. The janitor testified that he knew that he had poured water on the ashes taken up on the evening preceding the fire, and gave as a reason for his certainty that he had wet them down on this particular night, that he did it every night—in other words, that it was his invariable custom. The witness Walters, a former employee of the defendant, and who had been subpoenaed on behalf of the defendant, being called to the stand by the plaintiff, stated that it was the habit of the janitor to wet down the ashes every evening. The question was asked by plaintiff’s counsel“Was the habit a uniform habit, one strictly adhered to by him? A. Almost invariably. Q. Was it always?” To this question the court sustained the objection that it was incompetent, irrelevant, and immaterial, and not proper direct examination. “Q. Did you observe how frequently he didn’t wet the ashes during the period, say a month next preceding the Greenleaf fire? A. He might have omitted once or twice in the course of a month to wet them. Q. You say he might have omitted once or twice; do you know whether he did or not?” Objected to as incompetent, irrelevant, and immaterial, and objection sustained. There were other similar questions, objections, and rulings. We think the action of the court excluding this evidence was error.

The evidence sought to be elicited was not offered to prove an omission to wet down the ashes on the night of the fire, by showing that such omission had occurred on previous occasions, but to rebut the janitor’s statement that it was his invariable custom to pour water on them before de

We believe that the excluded testimony was admissible under section 2049 of the Code of Civil Procedure. But in any event, the palpably erroneous and misleading instructions justify the granting of a new trial.

The judgment is reversed.

Finlayson, P. J., and Thomas, J., concurred.