Liberty Insurance v. Central Vermont Railroad

An action arising out of the same fire which gives rise to the appeal now here has heretofore been before us (North British & M. Ins. Co. v. Central Vermont R. Co., 9 App. Div. 4 , 40 N. Y. Supp. 1113 ), and in that case the referee found that the fire was not caused by the negligence of the defendants, and this court, after a consideration of the evidence, came to the conclusion that the decision of the referee in that respect was correct. I have not been able to find, nor have counsel pointed out, any substantial difference between the evidence in that case and the one now before us. While the fact that this court in a former case affirmed a judgment where the finding as to negligence was directly the contrary to the finding-in this case,, is not conclusive (Underwood v. Cook, 3 N. Y. St. Rep. 467 ), and while it may well happen that in a case that is somewhat close upon the facts the court upon appeal will not disturb a finding made either way, and as different minds equally intelligent and upright may take different views of the evidence, and come to diverse conclusions, and, there being evidence to sustain either conclusion, the appellate court under well-settled rules would not feel at liberty to reverse either as against the weight of evidence, yet conflicting decisions upon the same evidence are to be avoided, if possible, being calculated, in the nonprofessional mind at least, to lessen confidence in the administration of justice. When, therefore, a case is presented where, upon conflicting evidence, or evidence from which different inferences may be drawn, the trial courts have come to directly oppo

In all contests over questions of fact upon conflicting evidence, or evidence susceptible of different inferences, the question as to who has the burden of proof resting upon him is a very important one, and the decision of that question may, and frequently does, practically determine the finding" as to the facts. Hence the holding of the trial court in that respect becomes a matter of importance. Formerly,- in a properly tried case, this could be ascertained by an inspection of the rulings upon requests to find, but under the present practice that resource, as a general rule, is not open to us. It seems to me, therefore, that when there is an opinion we may properly look into that to ascertain the standpoint from which the trial court viewed the evidence, and see whether he came to its consideration with any erroneous views as to the rules which should govern him in its consideration. Kenyon v. Kenyon, 88 Hun, 211 , 34 N. Y. Supp. 720 , and cases cited. " It is somewhat difficult in this case to determine precisely just what views the referee had as to the burden of proof. In the course of his opinion he says:

“The demand by the bailor of his property in the possession of a bailee, and the simple refusal to deliver without explanation, is sufficient evidence of conversion,—a loss or destruction of it,—and would be deemed sufficient proof to maintain an action and recovery of damages.” “Again, if the bailee alleges and proves that it has been destroyed by fire, or has been stolen, he must show that the fire or the theft occurred without his fault.” “Hence it may well occur that the bailor, instead of proving a demand and a refusal, proves the destruction of the property by fire. The party [plaintiff] has proved one fact, viz. that the fire destroyed the property, but he has not proved the other fact, viz. that the fire occurred and destroyed the property without the fault of the bailee.” “Now, I think it well established by the cases that the nature of an accident may itself afford prima facie proof of negligence. Curtis v. Railroad Co., 18 N. Y. 534 , 544; Story, Bailm. 338; and other cases cited in Russell Manuf’g Co. v. New Haven Steamboat Co., 50 N. Y. 121 , 127.” “Negligence may be inferred from the circumstances of the case. Where the accident is one which, in the ordinary course of events, would not have happened but for want of proper care on the part of the defendant, it is incumbent upon him to show that he had taken such precaution as prudence would require; and the failure to furnish the proof, if it existed, it would be in his power to make, may subject him to the inference that such precautions were omitted. Scott v. Docks Co., 3 Hurl. & C. 596.”

Taking these passages in connection with the rest of his opinion, it seems to me that he approached the consideration of the evidence and made his findings of fact upon the assumption that when the fire was proved then the burden of proof rested upon the defendants' to affirmatively prove that it occurred without negligence upon their part. This, I think, was error. The referee has held that the defendants were acting as warehousemen in keeping the grain in the elevator, and that such grain was retained in the elevator for the mutual benefit and advantage of the defendant corporations and of Ladd & Small-man; and in so holding I think he was correct. The complaint alleges the destruction of the grain by fire, and also alleges that such fire occurred by reason of the defendants’ negligence. • The answer

‘‘While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet oftentimes slight evidence will shift the burden to the, bailee. In an action against a bailee for loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence.”

The expression used in that and some other opinions as to the “shifting-” of the burden of proof has led to some confusion and misapprehension as to the rule. The true rule, I think, is, as I have above 'stated, where the issue made by the pleadings placed it, and it never changes. “During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient, it may be, to establish it prima facie; and it is sometimes.said that the burden of proof is then shifted. All that is meant by this is that there is a necessity of evidence to answer the prima facie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the facts which constitute the issue, and this burden remains during the trial.” Heinemann v. Heard, 62 N. Y. 448 ; Heilman v. Lazarus, 90 N. Y. 672 ; Spencer v. Insurance Ass’n, 142 N. Y. 505 , 37 N. E. 617 . “As a general rule, where a bailee fails on demand to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and, if the goods cannot be found, it furnishes the imputation of negligence as the cause. But such prima facie case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee. Then the •onus continues upon the bailor to prove that it was chargeable to the want of care of the bailee. And although it may be that the proof given by him explanatory of the reason for nondelivery may disclose circumstances which, in their nature, permit or require the inference of negligence on his part, the affirmative of the issue is not shifted to the defendant, but remains with the plaintiff. In the present case the plaintiff alleged in his complaint, and it appeared, that the loss resulted from the destruction of the factory by fire. From that fact alone no presumption arose to furnish a prima facie case against the ■defendant. But upon the main issue—whether it was attributable to the negligence of the defendant—the burden was with the plaintiff.” Stewart v. Stone, 127 N. Y. 500 , 28 N. E. 595 .

The burden of proof is upon the plaintiff who alleges negligence .against a warehouseman who accounts for his failure to deliver goods by showing their destruction by fire. The plaintiff must in all cases suing him for the loss of goods allege and prove negligence. This burden is never shifted from him. A demand and a refusal to deliver,

¡Neither do I think that the doctrine of res ipsa loquitur applies to this case. The occurrence of fires without negligence is frequent, and the mere fact of a fire does not justify the inference or constitute a prima facie case of negligence. Whitworth v. Railroad Co., 87 N. Y. 413 ; Stewart v. Stone, 127 N. Y. 500 ; 28 N. E. 595 . The attendant or surrounding circumstances may characterize the fire as one caused by negligence, but the fire alone does not speak for itself, and proof of the circumstances showing the fire to have occurred through the negligence of the defendants must be given by the plaintiff. He cannot rest by merely proving the fire, and then call upon the defendants to- show that it did not occur through their negligence. In this case it does not seem, to me that the evidence, in addition to the mere proof of the fire itself, establishes affirmatively the fact that it occurred by reason of the defendants’ negligence. As first above stated, the plaintiff’s theory, which was apparently adopted by the referee, is that the arbor at the foot of the lofting leg became overheated, and set fire to the accumulation of dust there, and the fire was then transmitted through the weighing bin into the receiving bin, and thence through the wooden spout into the projection. There is evidence that the dust at the foot of the lofting leg had not been brushed away at the close of the day’s work, as the rules adopted for the working of the elevator required, although that is disputed by the foreman of the elevator; and there is also evidence that the arbor was liable to become overheated by friction, and that it required constant oiling, and that the-tubes through which the arbor was oiled had been removed; and also-evidence that the dust from the grain was inflammable in character; and there is also evidence that at the close of the day’s work, and before 9 o’clock in the evening, the arbor was somewhat heated, and that there was a smell as though of something heated or burning, although there was no evidence of any fire at that time. The witness testifying to the heat of the arbor testified that it did not burn his hand in¡ placing it upon it. There was evidence also that the watchman employed was inefficient. ¡Notwithstanding this evidence, I do not think: that the facts in the case justify a finding that the fire was caused im the manner, or originated at the place, claimed by the plaintiff. The defendants controverted all the evidence as to the matters just stated, but, assuming the plaintiff’s testimony to have substantiated them all, yet, unless those acts' of negligence or omission caused the fire, it cannot be said that it occurred by reason of the defendants’ negligence-The finding that the fire occurred through the defendants’ negligence is predicated upon the assumption that its origin was at the foot of the lofting leg, and that the defendants’ neglect in caring for the machinery at that point produced the fire, and that, if the watchman had been efficient and alert, he would have discovered it in its incipiency,

For these reasons, the judgment should be reversed, the referee discharged, and a new trial granted; costs to abide the event. All concur, except MEBWTN", J., dissenting.