If there is evidence in this record reasonably tending to support a verdict for plaintiff for any substantial amount, it has escaped my search. I dissent because to me the verdict for almost the full amount of plaintiff's claim is manifestly and palpably contrary to the evidence.
The lieutenant in charge of the detachment of firemen which extinguished the blaze and removed the debris from the garage, saw a considerable number of cartons that had not been burned at all or were only partially burned. He saw no unburned or partially burned boxes of cigars or boxes or packages of cigarettes. Notwithstanding the survival of so many of the cardboard cartons, their content of tobacco, cigarettes and cigars had so far disappeared that Lieutenant Archambeau could "not very much" nor "very well" tell that "what was in there was a stock of tobacco," and the tobacco was of the usual kind that is not odorless in the burning. *Page 364 At that time he did not know "what it was that had burned there on the floor;" nor did he ascertain until "one of the carpenters happened to come around" afterwards and tell him "there had been a lot of tobacco in there." Mr. Gabardi, another fireman, who himself shoveled out most of the rubbish, saw nothing but "ashes and burned paper." He threw out several of the cartons (the contents of which, according to plaintiff, had burned), and "couldn't see' that they had anything in them. In fact he finally put it this way: "No, I can't remember of them having anything in them." He did not see any cigar boxes at all, only a few tobacco cans "rattling out while I was pushing the rubbish out." He saw no cigar boxes "burned or partially burned or unburned at all," and no cigars in boxes, packages or otherwise, and nothing indicating there had been any cigars.
Concerning cigars, one of the firemen said that there were a few "butts * * * all white and unraveled apart, possibly enough to fill a hat." No witness saw any trace of the two fair-sized wooden packing boxes in which cigars were said to have been packed. No witness present at the fire saw any evidence, except as already mentioned, that there had been any cigars at all in the place. No witness testified to the finding of any unburned orpartially burned packages or boxes of cigarettes.
One Jurisich was an eye witness of the "quick stop" made by the firemen. On cross-examination he testified that he saw them carrying out boxes, meaning obviously the pasteboard cartons, and that they were "full." He knew they were full "because every time they throwed them they was opened and scattered around tobacco."Yet he saw no cigarettes, "only some Camel cartons." He saw nocigars, only some cigar boxes and only "half a dozen or so" of them. Finally, cigars eliminated, his testimony as to the tobacco was reduced to this:
"Q. And there was a little loose tobacco that came out and some of these cartons that had been partially burned as you remember it?
A. Yes, sir." *Page 365
We then come to this conclusion which must be adopted in order to sustain the verdict: Although the two wooden packing boxes, a few inches away, containing about $900 worth of cigars, were burned to an ash; although all their own contents of cigars and cigarettes and most of the tobacco were almost obliterated; although the smaller and interior packages and boxes of cigarettes had entirely disappeared in smoke and ash, yet the cigarette and tobacco cartons (made of cardboard — not asbestos), the outer containers, probably first and most exposed, survived to a remarkable degree — some of them almost if not quite untouched by flame.
I think there should be a reversal, notwithstanding the absence of any evidence for defendants, because the verdict, as it stands, finds its only support in testimony the truth of which is obviously impossible.