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RUBIN v. GOLDNER (01/03/55)

January 3, 1955

RUBIN
v.
GOLDNER, APPELLANT.



Appeal, No. 269, Jan. T., 1954, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1952, No. 1401, in case of Edward Rubin v. Milton Goldner and Louis H. Somerson, trading as Melville Storage Co. Judgment affirmed.

COUNSEL

Jos. P. Flanagan, Jr., with him Herbert Somerson, Frederick A. VanDenbergh, Jr., and Saul, Ewing, remick & Saul, for appellants.

Richard W. Hopkins, with him Thomas Raeburn White, Jr., and White, Williams & Scott, for appellee.

Before Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 380 Pa. Page 241]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff in this case brought an action of assumpsit for the value of goods destroyed by fire in the warehouse of the defendants in which the plaintiff had deposited them for safekeeping. The jury returned a verdict of $4,373.80. The lower court, having refused motions for a new trial and for judgment n.o.v., this appeal followed.

It is not necessary to quote extensive authority for the proposition that a warehouseman who accepts the custody of goods for storage on a compensation basis is responsible monetarily to the owner if, because of lack of care on his part, those goods are lost, destroyed or damaged.*fn* The only question before us on this appeal is whether the record substantiates the verdict of the jury that the negligence of the defendants' employees caused the plaintiff's property to be destroyed by fire.

The warehouse involved was a rectangular one-story building approximately 250 feet long and 55 feet wide. The rear of the building, measuring 55 X 30 feet, was

[ 380 Pa. Page 242]

    separated from the rest of the building by a Celotex non-fire-resistent wall and was used as an auto repair shop by the defendants. On the morning of April 15, 1952, several of the defendants' employes were working in this repair shop on the gasoline tank of a truck into which some water had penetrated. The chief mechanic, Alfred J. Fiocca, decided to get to the gasoline, with the object of draining the tank, by drilling through the plug, which apparently was corroded and did not respond to a monkey wrench's pull. When sparks from the electric drill came into contact with the gasoline, the inevitable happened. Flames leaped to the roof members directly above the repair shop area, shot along the ceiling into the warehouse proper, dropped burning embers over stored and piled-up material, and precipitated a conflagration of such proportions that four alarms brought several companies of fire fighters who fought the all-engulfing blaze from 10:20 a.m., to 3:34 p.m., by which time the plaintiff's goods were reduced cinders.

Could a jury say that it was negligence for a worker to enter into a reservoir of gasoline with a whirling electric drill, known to produce flashes of live fire? It would be trying credulity to an intolerable degree to assume that a jury could not find negligence in so imprudent an act. Sawing off the limb of a tree while sitting astride it is a comparatively safe operation when contrasted to introducing burning sparks into so inflammable and combustible a liquid as gasoline.

Nor can it be said that Fiocca, the defendant's employee, was an amateur around gasoline-driven vehicles. He had been an auto mechanic for 15 years. He admitted that he knew that what he was about to do was a "touchy job." More than that, he actually anticipated a fire. He directed a ...


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