issue as to whether as a fact the Hoffman Building was a public garage was presented to the jury and they answered Interrogatory No. 4 that the presence of any live automobiles as distinguished from burned out hulks was not a proximate cause of the spread of fire to the Schultz Building. There was ample support in the record for the jury's finding.
The plaintiff also complains about the refusal of certain requests for charge.
A. Plaintiff's Requests 11, 12 and 13.
The court had affirmed plaintiff's Request No. 10 with a modification which clearly told the jury that they could find that the Hoffman Warehouse was a storage garage for five or more automobiles making it a public garage under the Erie Building Code, if they found that the automobiles therein were live automobiles as distinguished from burned out hulks. The court then refused Request Nos. 11, 12 and 13 which bore on the same subject. At conference with counsel, prior to the court's charge, the court indicated that it refused No. 11 because it referred to a date of September 26, 1969, ten months before the fire, as to the use of the Hoffman Building for a public garage and the same was true of No. 12. No. 13 involved the use of this structure as a public garage without the installation of fire resistant materials. This last should be considered with plaintiff's Request No. 14 which was affirmed with a modification that if the Building Inspector knew the Hoffman Building was being put to use which increased its hazardous condition, then he had a duty to advise the tenant Sharkey of its improper use and to advise Mrs. Hoffman, the owner, as to the building's unsafe condition. This was affirmed.
In the light of all this, it is believed that the court had amply and fully covered the situation with respect to the Hoffman Warehouse as a public storage garage. In any event, the jury found that the storage of live automobiles in the building was not a proximate cause of the spread of the fire to the Schultz Building.
B. Request No. 17.
Plaintiff also complains of the refusal of Request No. 17. This was refused as having been covered by the general charge in part and partly being in conflict with it. In view of the fact that we left the question of proximate cause to the jury as to whether the Hoffman Building was the cause of the loss to the Schultz Building, this request was properly refused as being argumentative and, in any event, even if the Hoffman Building had been cleared of cars, dead or alive, it appears that the Schultz loss would nevertheless have still occurred.
C. Request Nos. 5, 6, 7 and 8.
Plaintiff also complains about the refusal of requests 5 through 8. No. 5 with respect to the mandatory duty of the Building Inspector to serve a notice that the Hoffman Building was unsafe was refused as repetitious, this matter already having been covered by Request No. 4 which had been affirmed with the modification that the evidence indicated the Building Inspector had complied with these requirements. No. 6 with respect to the duty of the City Solicitor to institute appropriate legal action, was affirmed with the modification that this was a correct statement of the law provided the City Solicitor, in the exercise of his discretion, considered this a proper case under the circumstances. Certainly, the City Solicitor has the discretion as to what suits he is going to institute in court which he has a reasonable chance of winning, just the same as the United States Attorney cannot be faulted for not bringing criminal prosecutions in every case. Request No. 7 was refused as not being a correct statement of the law. In any event, the jury having found the Hoffman Building was not unreasonably hazardous to the Schultz Building, this point made no difference. No. 8 was also refused since the same was argumentative and with respect to the failure of the Building Inspector's conduct constituting negligence amounted to a directed verdict for the plaintiffs to which they were obviously not entitled.
In sum total, it appears that plaintiffs' real complaint is that the jury found against them on a sharply disputed set of facts and where the facts were admitted, varying inferences could have been drawn. This the court cannot help since both parties were entitled to a jury trial, there was substantial evidence to support the jury's verdict, at least so substantial that the court is unwilling to find that the verdict is against the weight of the evidence. For these reasons, plaintiff's motion for new trial will be denied.