Persons (not servants) injured while on defendant's premises.

Servants injured on master's premises.

Servants injured from negligence of fellow-servants.

SUTTON . WAUWATOSA, leading case.

Note on Contributory Negligence.

Ground of doctrine.

Burden of proof.

Identification or imputability.

Passenger and carrier.

Parent and child.

MCCULLY v. CLARK and THAW.

(40 Penn. St. 399. Supreme Court, Pittsburgh, 1861.)

Negligence as a Question of Law or Fact. In an action on the case for damages against defendants, for negligence in not caring for and extinguishing a pile of coal which had taken fire, whereby the warehouse of the plaintiff adjoining, with its contents, was burned up and destroyed, the proper subject of inquiry is, whether the de

fendants had used such care, caution, and diligence as prudent and reasonable men would have exercised; and it is a question for the jury. Hence, it was not error in the court below to refuse to instruct the jury, that if they believed certain facts to be proved, of which evidence had been given, the defendants were guilty of negligence as a matter of law, and that the plaintiff was entitled to recover. In actions for negligence, the burden of proof is on the plaintiff. The court below sustained in declining to rule that the proof of certain designated facts by the plaintiff was sufficient to change the burden.

This was an action on the case brought in the District Court to July term, 1859, by James McCully against Thomas S. Clark and William Thaw, partners, doing business as Clark & Thaw, to recover damages for the destruction by fire of a warehouse and contents, owned by him, on Penn Street, in the city of Pittsburgh, alleged to have been occasioned by the default of the defendants in "negligently and wilfully" permitting a large quantity of burning coal to remain for a long time unextinguished upon their premises, immediately adjoining the wall of the warehouse which was destroyed. The testimony was to the effect that plaintiff's property, of the value of $30,000, was consumed by fire on the morning of July 20, 1853; that the premises had been closed up as usual on the previous evening, no person remaining therein, and no fire being kept thereupon; that on the 26th day of the previous month the warehouse immediately adjoining thereto, and occupied by the defendants, who were transporters upon the Pennsylvania Canal, was burned to the ground by a fire originating in and communicated by a boat belonging to the said defendants; that the said last-mentioned warehouse, being of the height of a single story, and without any cellar underneath the same, was used by the defendants for the deposit of coal, belonging to themselves, and stored for the purpose of transportation therein; that, at the time of the said fire, a large quantity of the coal, amounting to several thousand bushels, was piled up to the depth of some five or six feet against the wall next adjoining to the warehouse of the plaintiff; that the said coal was ignited at the time of the destruction of the defendant's warehouse, and continued to burn until the 20th of July next following thereafter; that the said plaintiff, apprehending danger therefrom, complained on several occasions to the mayor of said city, and that, notwithstanding occasional intermitted efforts on the part of the defendants to extinguish the same by throwing water

thereon, the coal continued to burn until the period of the destruction of the plaintiff's property.

The plaintiff further offered evidence to show that his warehouse was strongly and substantially built, with cellar and other independent walls throughout; and that the fire had its commencement in the ends of the timbers inserted in that part of the defendant's wall, against which the said mass of burning coal was piled. He also offered evidence to prove that the application of water, as shown by the testimony, would be only to intensify the heat; that the only feasible means of extinguishing it would have been by taking the same away, and that a large portion of the coal was converted by the operation into coke, and in that shape afterward disposed of and removed by the defendants.

The defence was, that the fire did not originate from the burning of the coal in the ruins of defendant's warehouse; that the defendants were guilty of no negligence in relation to the coal burning in the ruins of their warehouse, but had employed frequent, efficient, and faithful means to extinguish the fire down to the evening immediately preceding the burning of plaintiff's warehouse, at which time it was apparently extinguished, no fire being afterwards seen by any one in the ruins of defendant's warehouse; and that if there was in fact, or if the plaintiff supposed there was, the slightest danger of injury to his own property from the cause assigned, he was guilty of the grossest negligence in neglecting all efforts to prevent the injury, and in not giving notice to defendants, he having been frequently at the ruins while the fire was burning, and in that he had no fear of it.

Under the above facts the plaintiff requested the court to charge the jury: —

1. That if the jury believe that the defendants had a large pile of coal placed in their warehouse against the side walls thereof, for a distance of from sixty to ninety feet or thereabouts, and in height against said walls from five to nine feet or thereabouts, and extending out from said walls from eight to twelve feet or thereabouts, at the same or a greater height; and thence extending some eight or ten feet further, diminishing from said height to almost nothing; and that the stone wall of plaintiff's warehouse was built close up against the stone wall of defendant's warehouse, against which said coal was piled; and the brick wall of plaintiff's warehouse ran close alongside of the brick wall of de

fendants' warehouse, against which said coal was piled; and if the jury believe that said coal was set on fire by the burning of defendants' warehouse, on June 26, 1853, and continued to burn until July 20, 1853, the defendants being aware of the fact, still in possession, and having caused water to be thrown upon the same at different intervals during said period, without extinguishing the same; and if the jury further believe that fire was communicated to plaintiff's warehouse and its contents from the fire in said coal pile, and that the same were thereby burned up on July 20, 1853; then, from these facts, as a matter of law, the defendants are guilty of negligence, and the plaintiff is entitled to recover the value of his warehouse and its contents.

2. That if the jury find the facts as stated in the foregoing point, and the court should decline to charge that, as a matter of law, the plaintiff is entitled to recover, then the court is requested to charge that these facts throw upon defendants the burden of proof in the case; and the jury must be satisfied that said fire in said coal pile could not have been extinguished by the defendants from June 26 to July 20; otherwise the plaintiff is entitled to a verdict for the value of his warehouse and its contents.

3. That there is no evidence in the cause of any such negligence on part of plaintiff as will prevent his recovering.

4. That the defendants permitting a large mass of coal, piled against the walls of their warehouse, immediately adjacent to the walls of plaintiff's warehouse, to be on fire for some twentyfour days in the most busy part of the city of Pittsburgh, they knowing the fact, was a violation of their duties as citizens; a nuisance and gross negligence towards the plaintiff and his property; and if plaintiff's property was set on fire thereby or therefrom, defendants are liable for the loss, and there is no evidence in this case by which they are entitled to escape from such liability.

5. That plaintiff had no right to go on the private property of defendants to extinguish this fire; but if the court should think he had, by reason of the fire being a public nuisance, still he was not bound to do so, and his failure so to do was not such negligence on his part as will prevent his recovering.

6. That the leaving of a large pile of burning coal belonging to the defendants, upon their own premises, in immediate proximity to the plaintiff's warehouse, in the centre of a populous city, is

negligence per se; and if the plaintiff's house was set on fire thereby, the defendants are liable to the extent of the loss thereby occasioned.

7. That it was the duty of the defendants to extinguish the said fire, and, if not otherwise practicable, to remove the coal itself for that purpose; and that the law casts no duty on the plaintiff to undertake the labor and incur the expense of doing this himself.

8. That if the law did make it the duty of the plaintiff to take any steps himself, that duty was discharged by an application to the mayor, and such application will relieve him from the imputation of negligence. The court below (Williams, J.), after reciting the main facts of the case, charged the jury as follows:

"The plaintiff's right to maintain this action, and to recover damages for the destruction of his warehouse and its contents by fire, and the defendants' liability therefor, depend upon well settled principles of law, easily understood and readily applied.

"1. The plaintiff is not entitled to maintain this action, and to recover damages for his loss, unless the fire which destroyed his warehouse was occasioned by the negligence of the defendants. Negligence is the very gist of this action; and, therefore, unless the defendants' negligence was the occasion of the fire, the plaintiff is not entitled to recover.

"2. The plaintiff was bound to use ordinary and reasonable care and diligence for the preservation of his property, and he is not entitled to recover if his own negligence contributed to, or was the cause of, its destruction. If the fire which caused the loss of the warehouse and its contents was occasioned by the mutual negligence of both the plaintiff and defendants, the former is not entitled to recover damages for the loss which he has sustained. Negligence is the want of proper care, caution, and diligence, such care, caution, and diligence as, under the circumstances, a man of ordinary and reasonable prudence would exercise. It consists in nonfeasance; that is, omitting to do or not doing something which ought to be done, which a reasonable and prudent man would do; and a misfeasance, that is, the doing something which ought not to be done, something which a reasonable man would not do, or doing it in such a manner as a man of ordi