Appeal from judgment of Court of Common Pleas of Montgomery County, No. 64-2416, in case of Edward B. Duffy, individually and Edward B. Duffy, Desmond J. McTighe et al. v. National Janitorial Services, Inc.
C. Howard Harry, Jr., for appellant.
Louis C. Bechtle, with him Morris Gerber, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell dissents. Dissenting Opinion by Mr. Justice Cohen.
Edward B. Duffy was the owner of a building at 104 North York Road, Hatboro. He and several other lawyers, all plaintiffs in this case, occupied the building in the practice of the law. The National Janitorial Services, Inc., defendant in the case, entered into a contract with the plaintiffs to perform certain services consisting of cleaning offices, emptying waste baskets, emptying ashes from the incinerator and removing trash and ashes.
On the night of May 7, 1963, a fire broke out in the plaintiff's offices causing considerable damage, and the plaintiffs brought suit in trespass against the National Janitorial Services, charging it with negligence in the service it rendered the plaintiffs.*fn1
In the ensuing trial the jury returned a verdict in favor of the plaintiffs in the sum of $37,011.05, and
the defendant has appealed, seeking judgment n.o.v. or, in the alternative a new trial. The defendant contends that the plaintiffs failed to prove any negligence on its part. It is admitted that on the night of May 7, 1963, Lewis McKinney, an employee of the defendant, was on the Duffy premises performing his janitorial services. In the course of this employment he withdrew ashes from the incinerator and placed them into a cardboard box, which he deposited in the basement of the building. The plaintiffs submitted as their thesis during the trial that it was the consignment of the ashes to the inflammable container which ignited the ruinous fire.
Carbutt W. Alman, the Hatboro Fire Chief, and Sergeant Kiggins, the State Police Fire Marshal, testified that in their expert opinion, after inspecting the gutted building, the fire had begun in the cardboard box which nestled close to a small table, that the resulting flames burned through the table up to a gas meter, which melted, causing gas to escape, and that all these elements combined in combustion to precipitate a conflagration.
It would not be unreasonable to conclude, and evidently the jury did so conclude, that it was the dumping of the ashes into a cardboard box which produced the blaze which worked the destruction of which the plaintiffs complain. But, the defendant contends, the facts do not warrant such a conclusion. It insists that the ashes thrown into the cardboard box were cold, and that the jury could not find otherwise because McKinney testified he had stirred the ashes with his hand. The defendant argues further that since the plaintiffs called McKinney as their witness, they were bound by his testimony,*fn2 and that, therefore, the ashes had to be cold.
When men and women leave their homes and occupations to perform jury duty, they are not required to leave behind them their common sense. Their evaluation of what is reasonable and credible is part of their equipment as jurors, and if they conclude that, when McKinney said he had churned the ashes with his fingers to find out if they were cold, he was adding an ice cube of invention to his memory of that hot night, the jurors cannot be accused of capriciously ignoring his testimony. In that respect, the jurors could well have reasoned that no sensible person would dip his hands into what might well have been hot ashes to find out ...