Kalodner, Van Dusen and Stahl, Circuit Judges.
This diversity action, based on negligence, arises out of a fire which occurred in appellant Ryerson's building in Jersey City, New Jersey. There was no reliable indication as to the cause of the fire. Indeed, without objection, the court below charged the jury that "there has been no proof asserted as to the origin of the fire." Appendix (App.) 549a.
Plaintiff-appellant sued three parties for damages from the fire, appellee H. A. Crane & Brother, Inc. (Crane), appellee Allied Chemical Corporation (Allied), and Towmotor Corporation (Towmotor). The jury rendered a verdict in favor of all the defendants.*fn1
On the day of the fire, August 11, 1964, appellee Crane was engaged in repairing the roof of the Ryerson building. In so doing, Crane constructed an apparatus to raise and lower tar buckets from the ground to the Ryerson roof. The ground abutting the Ryerson building was owned by appellee Allied. Ryerson had received permission for Crane to make such use of the premises from Allied. The tar was heated to a temperature of 400 degrees Fahrenheit while on the ground and then hoisted to the Ryerson roof for application.
On the same day Towmotor was engaged in repairing a forklift which belonged to Allied and was located on Allied's property. Appellant claimed that the employees of Towmotor used a flammable material to clean the forklift in close proximity to the fire used to heat the tar kettle.
Also at the time of the fire, and for a long time prior thereto, appellee Allied, whose property abuts the Ryerson building, had permitted combustible materials, including wooden boards, wooden pallets, paper, weeds and other trash, to accumulate on its premises near the Ryerson structure.
Appellant asserted that Crane was negligent in heating the tar near the litter on the Allied property, that Towmotor was negligent in using flammable liquids near the Crane fire and the Allied trash, and that Allied was negligent in permitting the litter to accumulate as a fire hazard. Further negligence on the part of Allied was alleged to have been its failure to prevent the spread of the fire from its property to the Ryerson building.
Despite these contentions, not only is there no evidence as to how the fire started but the parties are also in dispute as to where the fire started. The record leaves uncertain whether the fire began on the Allied property or in the Ryerson building. In addition, there was evidence of other causes of the fire. One of Crane's employees admitted to smoking on the job. (App. 352a, 361a.) On the day of the fire a plumbing contractor was working inside the Ryerson building using electric arc welding equipment. (App. 313a.) Ryerson's employees were permitted to smoke both inside and outside the building. (App. 45a.) Finally, there is testimony that an unidentified Ryerson employee stated that at the time of the fire he observed a spark or flame emanate from an electric box and ascend the wall or beam inside appellant's building. (App. 388a-390a, 393a, 394a, 403a and 408a-409a.)
Appellant requested that the jury be charged that regarding appellee Crane, the roofer, the doctrine of res ipsa loquitur was applicable, and regarding Allied, that an adjoining landowner has a duty to aid in the extinguishment of a fire if it starts on its premises. The court refused to so charge. Appellant's request for an extensive and detailed charge on the inferences permissible to be drawn from circumstantial evidence was also rejected.
Appellant moved for a new trial after a jury verdict for all three defendants on the ground that failure to give the requested charges was error.*fn2 The court below ruled against appellant on all of these claims, without opinion. Ryerson appealed; we affirm.
Was Appellant Entitled to the Requested Res Ipsa Loquitur Charge Against Appellee Crane ?
The Latin phrase res ipsa loquitur means "the thing speaks for itself." Prosser on Torts § 39 at 217 (3d ed. 1964). Application of the doctrine entitles plaintiff to a jury instruction that a finding of the breach of duty element in a negligence action may be based on inferences alone without direct proof.*fn3
The law of New Jersey which controls this lawsuit generally requires the plaintiff to satisfy three elements ...