The plaintiffs allege that the defendant erected and maintained in the town of Washington, N.C. a freight depot, warehouse, and office, one end of which extended over the water of Pamlico River 24 feet, supported by piles, and the other end fronting on Main Street. Said building was 154 feet long, 77 feet wide, and 11 feet between floor and joints. The cars ran alongside the building for the purpose of receiving and unloading freight. Near the end extending over the water was a "slip," into which boats entered to receive and unload freight. At this point there were large doors. Plaintiffs allege that the arrangement made in said building for protection against fire originating from a stove used in the office was negligent and dangerous; that the flue was negligently constructed and maintained in violation of the ordinance of the town; that the warehouse was in such close proximity to the buildings of plaintiffs and other persons that defendant was compelled to take notice of the danger to them by fire if its property was burned; that by reason of the negligent construction and dangerous condition of the flue the warehouse caught fire and was burned on 8 February, 1902, and the fire communicated to and destroyed plaintiff's property, to their damage more than $5,000.
The defendant denied all allegations of negligence in the premises, and the case was submitted to the jury upon the issue thus raised by the pleadings.
The testimony tended to show that in the warehouse, on one side thereof, an office was "cut off," by boarding up, for the use of defendant's agents and clerks. Hanby, a witness for defendant, thus describes (493) the manner in which it was constructed and the fine placed. Witness was in charge of the building during the year 1892 or 1893. He says: "The office ceiling was seven-eights tongue-and-grooved material, and time joists were 2 by 8. On top of the joists we had 2-inch *Page 367 boards, with a hole sufficiently large for the pipe to go in and leave a little space of three-eighths or half an inch all round as clear space. We cut a hole through the ceiling and left three-eighths of an inch clear space all round. We set the pipe in mortar on the boards and kept on in the usual way of putting pieces up and putting some mortar round them. We placed a collar round the fine where it passed through the roof. I think the fine extended 3 or 3 1/2 feet above the roof. This fine was made of fire-clay, the same as furnace brick. The inside diameter of the flue was 6 inches and it was 1 inch thick. The fine was perfectly stable, steady, and secure. The fine extended below the ceiling 1 inches or 1 inches, Around the lower part of the base of the fine we used the heaviest tin we had, and riveted it together and made a collar to fit around the flue tight, not specially as a protection against fire, but to keep people from shoving it out, and the collar was also intended to prevent cracking when expansion took place." After the witness had testified to his experience, the court held he had qualified himself as an expert.
Q. "Take a fire-clay fine constructed as you have described the construction of this fine. I ask you whether it was a safe fine." A. "Perfectly safe."
Mr. Johnson testified to the same in regard to the construction of the office and the fine. He says that a hood was placed over the flue.
Mr. Harding, a witness for plaintiffs, says that he is a carpenter. "Prior to the fire I had occasion to examine the flue leading from the office through the ceiling and roof. The agent asked me to stop a leak. I went on top of the roof and found that one of the jars or (494) pieces about 2 feet long was split. The crack was about the size of a pencil. Water would go through the crack and down on the stove. I do not know how far the crack extended below the roof, but it extended the length of the section. I told the agent that he would have to have a tinner, that the jar was broken and he needed a new one." This witness gave it as his opinion that terra-cotta fines, such as this, were not safe. He did not remember how hong this examination was before the fire. He recommended that Mr. Phillips be employed to fix the fine.
Mr. Phillips was introduced by defendant and testified as to the condition of the flue and the work which he did upon it. After describing its construction and condition, lie says: "I bought a new fine from Mallison's, which was similar to the old flue which I took out. In fact, it was just like it, as near as I can toll. I bought three new sections. I constructed the lower section just as it had been put in before." He described the fine and the work which he did upon it at much length. Some of the witnesses speak of the flue as terra-cotta and others as fire-clay. *Page 368
C. F. Bland, a witness for defendant, says that he was assistant agent at Washington at the time of the fire. The office had been enlarged and this stove set about midway. When Phillips repaired this flue a new stove was put in. It seems that the pipe rested on the stove, went up and into the fine, extending sonic few inches above the ceiling. Witness discovered the fire about 4 :40 o'clock in the afternoon. The Old Dominion steamer heft the slip about 4 o'clock. The steamer Myers came in after she left. "The fire was called to my attention by a colored man named James Knight. The fire had died down in this stove and the office was getting cool, and I had sent the man out to get a scuttle of coal. He came in with the coal and called my attention to the fire, and I looked through a crack in the ceiling and saw a blaze of fire above the ceiling. (495) The blaze was about 2 1/2 feet from the flue and next to the river, being about southwest from the fine. As near as I could see, the blaze was in the roof. At that point I should say the roof was about 14 or 18 inches above the ceiling. It was a very small blaze when I discovered it. We used hard coal in the stove. This coal makes practically no blaze. I do not think I have ever seen sparks coming from it." He testified that there was before the fire a charred place in the ceiling, caused by the stovepipe settling down and coming out of the fine. This was about two months before the fire. It was fixed securely and was in secure condition at time of fire.
J. G. Chauncey, a witness for plaintiffs, testified that the warehouse had openings at each end and in the west side, next to the ship which separated it from the Old Dominion warehouse. The end was next to Main Street and it extended back beside the slip to the river. There were railroad tracks in the warehouse. "When I reached the warehouse the fire did not seem to have been burning long, and I saw a blaze a foot or 18 inches above the office ceiling. The flue from the stove went up) straight. The blaze I saw was close by the flue. . . . It was a terra-cotta pipe which ran through the ceiling. This terra-cotta fine was 6 or 6 1/8 inches. The flue went from the office up through the ceiling and through the roof. There appeared to be 3 or 4 feet of the fine between the roof and the office ceiling. From what I saw, the fire looked like it was right around the pipe, but I cannot say positively." Tills witness also testified in regard to an explosion caused by some powder in the warehouse. He says that they used all possible means to prevent the fire spreading to plaintiffs' property. There were other buildings between the warehouse and plaintiffs' property which were burned. Upon cross-examination he says: "When I got to the building I did not see any fire in the roof; all I saw was near the top of the office This (496) flue seemed to be of fire-brick, but harder. I gave notice to this *Page 369 company of the town ordinance prohibiting the use of the stovepipe, and carried the notice direct to them and directed them to move the pipe." He was chief of the fire department.
Mr. Bragaw, for plaintiffs, testified that he was a fire insurance agent. Flue was in the southwest corner of office. The flue went through the ceiling of the office and the roof of the warehouse. "I should judge there was a space between ceiling and roof of 2 feet." He says that when he saw the fire it was "just beyond top of office." He gave it as his opinion that terra-cotta flues are not safe — are liable to crack under the effect of heat and cold.
Mr. S. R. Fowle, one of the plaintiffs, testified in regard to the value of property, amount of loss, etc. He says that he has bad experience in building, using terra-cotta flues. They are not safe — subject to crack from beat and cold.
Dr. Tayloe, witness for plaintiffs, says that he first saw the fire and gave the alarm. "At that time smoke was emerging from under roof, before the blaze broke through. I saw the smoke emerging from near the fine."
Defendant's agent denied that any notice was given them by Mr. Chauncey of the ordinance. There was much other evidence, and several witnesses expressed different opinions in regard to the safety of flues. There was testimony pro and con regarding the probability of fire in steamers in the slip. This is not material, in the view taken by the Court. The plaintiffs introduced the following ordinance:
"Be it ordained, That whenever any stovepipe used in any building in the corporate limits of the town shall pass through any wall, partition, flooring, or ceiling, said stovepipe shall be inclosed within brick where it passes through such wall, partition, flooring, or ceiling, and shall be separated from contact with such wall, partition, flooring, or ceiling by brickwork not less than 4 inches in thickness, and such stovepipe shall not be permitted to be nearer to any wood in such building (497) than 2 inches at any point. Any violation of this ordinance shall subject the offender to a fine of $10, and the stovepipe used in such building in violation of this ordinance shall be torn down by the policemen of the town."
Defendant objected and excepted. There was a verdict for plaintiffs. Judgment. Appeal. The exceptions are discussed in the opinion. The defendant requested his Honor to instruct the jury that the city ordinance introduced by the plaintiffs did not apply to the *Page 370 conditions disclosed by the evidence; that the evidence did not disclose the case of a stovepipe passing through any wall or ceiling within the language or meaning of the ordinance. As we understand the testimony, the stovepipe rested upon or was attached to the stove in defendant's office and extended up to and entered the flue of terra-cotta or fire-clay. The flue rested upon and, or' some way not very clearly described, extended 1 1/4 or 11/2 inches below the ceiling. At the entrance the pipe was held steadily in position by a tin collar. All of the testimony shows that the hole cut in the ceiling was larger than the flue and the space filled in with mortar. The flue into which the pipe entered passed through the roof, extending above it 3 1/8 feet, and was "capped" or covered with a "hood." The ordinance was evidently intended to prohibit a custom, which experience has taught to be dangerous, of passing stovepipes through walls and ceilings of wood. The word "stovepipe" is well understood to refer to pipe made of either sheet iron or heavy tin, which usually connects the stove with the chimney or fine, made either of brick or fire-clay or terra-cotta. The evident purpose of the ordinance was to require that when a stovepipe passed through the ceiling it (498) should be separated from the wood in the manner directed. The testimony of the witness who constructed the flue and adjusted the pipe excludes the idea that the hatter passed through the ceiling, within the terms or meaning of the ordinance. The distinction between a stovepipe and a flue is clearly recognized by the act of 1905, ch. 506, secs. 17 and 20. His Honor was evidently of the opinion that the word "pipe" included both the flue and the metal pipe. He said to the jury: "If the plaintiff has shown by the greater weight of the evidence that the fire originated from the pipe or fine, and that the flue was constructed in a manner that was in violation of the town ordinance, your answer should be `Yes.' "He further said in this connection that by "pipe" he meant "either earthen or metallic." In this view of the ordinance the jury were compelled to find that the defendant had violated its terms. If the "earthen" line must enter brickwork not less than 4 inches in thickness, etc., it was manifest that the terms of the ordinance were not complied with. We cannot concur with his Honor's construction of the ordinance. We find but one witness who speaks of the stovepipe extending into the flue above the ceiling. Mr. Bland says that the pipe settled and the joints overlapped; that the result was that the lower side of the ceiling became charred, and he pushed the pipe up so that it extended beyond the ceiling about 6 inches; this, of course, being separated from the wood by the walls of the flue and the collar. There is no suggestion by any witness that the flue was not carefully and properly constructed and secured, or that the pipe was not properly secured therein. But if the *Page 371 pipe was not separated from the wood in the manner required by the ordinance the defendant insisted that there was no evidence that the fire originated at the place where the stovepipe entered the flue, and that therefore such condition was not the proximate cause of the fire. His Honor told the jury that before they could fix liability upon defendant on account of the violation of the ordinance they must find that it was the proximate cause thereof. The first witness who saw the (499) fire from the outside was Dr. Tayloe, who says: "The smoke was emerging from under the roof before the blaze broke through from near the flue." Mr. Chauncey says: "I saw a blaze a foot or 18 inches above the office ceiling, close by the flue." Mr. Bland says that the fire had died down in the stove and the office was getting cool; that he had sent a man out to get a scuttle of coal; that he came in with the coal, and before putting it on the fire he called witness's attention to the fire; that he looked through a crack in the ceiling and saw a blaze above the ceiling, about 2 feet from the fine; that, as near as he could see, the blaze was in the roof, which was about 14 or 18 inches above the ceiling; that they used bard coal in the stove. The colored man, Knight, who brought in the coal, corroborated Mr. Bland. In this respect we find no contradictory testimony. Mr. Bragaw says "the fire seemed to be making from the space over the office towards the slant of the roof." We fail to find any evidence locating the fire at the point where the stovepipe entered the flue. From the uncontradicted testimony of Mr. Bland, corroborated by the colored man, Knight, and the natural evidence, it is difficult to see how the fire could have originated by heat communicated by the stovepipe at the point of entrance into the flue. The construction of the fine, resting upon the ceiling, would have protected the upper side of the ceiling, and if the beat from the stovepipe had been sufficient to ignite the wood it would have first appeared on the lower, unprotected side. Again, all of the plaintiffs' evidence — every witness who expressed the opinion that terra-cotta or fire-clay flues are unsafe — gave as a reason: "They will crack from heat or cold, and from water when they are hot." This is the language of Mr. Fowle, Mr. Bragaw, and Mr. Chauncey. Not one suggests that the heat from the stove would communicate fire through them. His Honor charged the jury: "If you shall find from the evidence that the ordinance introduced in evidence by (500) the plaintiffs bad been in force since 3 December, 1900, in the town of Washington at the time of the fire, and was passed for the purpose and intention to prevent this catching of buildings on fire in the corporate limits of the town and the spreading of such fire to adjacent buildings, and that the defendant used and operated its fine in violation of such ordinance, this would constitute negligence on the part of the *Page 372 defendant; and if this negligence was the proximate cause of the plaintiff's injury — that is to say, if the fire caught from defendant's building by reason of the manner in which they were using their flue in violation of the ordinance, and the fire, by natural cause and effect and under such conditions of wind and ether surroundings as a reasonable man could have anticipated and under the conditions that existed at the time of the fire, in fact, caught — then the defendant would be liable for such damages as resulted to the plaintiff therefrom." Defendant excepted.
The ordinance did not prescribe the manner in which defendant should use and operate its flue, but the manner in which the stovepipe should pass through the ceiling. We think, however that may be, there was error in leaving to the jury the question of proximate cause in that connection. As we have said, we find no evidence that the fire originated at the point of connection between the stovepipe and the flue. Thus eliminating the ordinance from the case, the question arises whether there was any evidence of negligence in the use of the fine — that is, whether the flue made of terra-cotta or fire-clay was reasonably safe, or, as his Honor correctly said to the jury, whether a man of ordinary prudence, having due regard to the safety of his own and the property of others, would use the fine (described by the witnesses) in the manner and at the place which they were used by defendant. Defendant insists that there is no evidence tending to show negligence in this respect, and that his Honor should have granted the motion for judgment of (501) nonsuit. It is conceded that these flues were prior to the passing of the ordinance in general use in Washington. Mr. Chauncey says that he has taken out of houses since that time 300 of these flues. He says the objection to them is that "when heat was on them they would burst." Mr. Bragaw, who is in the insurance business, says that his opinion, backed by observation, is that fire-clay flues are not a proper precautionary measure against fires on any premises — they are liable to crack. Mr. Fowle says that lie has built many houses for himself end others, that he has observed them for ten years, and that he has been taking these flues out "lately." Mr. Harding, a carpenter, examined the flues some years ago and found one of them cracked, and advised the defendant's agent that by "needed a new one." Mr. Phillips says that he took out the old or cracked flues and put in new ones. This was about a year or eighteen nonsuit before the fire. A number of defendant's witnesses — mechanics and builders — express the opinion that the terra-cotta flue is safe for the use to which it was put. This contradictory testimony was properly submitted to the jury. There is also evidence tending to show that defendant's agent was notified to take the flues out. This is denied. The evidence is competent upon the question of notice to *Page 373 defendant that the flue was not safe, if the jury so find. The first question to be settled by the jury is whether the fire originated from cracks in the flue. There is no direct evidence that there were any such cracks. The only evidence in that respect is that some eighteen months before the fire one section of the flue was found to be cracked and taken out; that a new flue of the same kind was put in. The learned counsel for plaintiffs strongly urged before us the view that by reason of the length of the building, its extension resting on piles 24 feet over the water, the striking of steamboats upon its side in the slip, the running of cars and heavy trucks, the building was caused to vibrate and loosen the sections of the flue or to break it. The defendant, on the other (502) hand, argues that the fire was caused by sparks from the steamboats, etc. It is extremely difficult to fix with any degree of certainty how many fires originate. Different theories are advanced in almost every instance. The defendant requested his Honor to instruct the jury: "If you find that the flue in question was constructed by a competent builder and of safe material and in safe manner, and that the defendant did not negligently permit the same to become defective, then the court instructs you that the maintenance of the flue so constructed was not negligence, and this would be true even if you should further find that the fire originated from the flue. If you should so find, you should answer the first issue `No.'"
The court declined to charge the jury as requested, and the defendant excepted.
We think defendant was entitled to this instruction. It correctly states the measure of duty which the law imposes upon the owners of buildings. Persons constructing and using buildings are compelled to rely upon the judgment of competent builders, of those who by reason of skill and experience are fit and competent to be consulted and intrusted with the erection of buildings, with arrangement for fires therein, and it may be relied upon with that degree of safety which the law requires. If the jury found the conditions involved in the instruction, we think that no negligence can be attributed to defendant. In Parker v. Moore,91 N.C. 275, the stovepipe was run through the wall and "the fire originated where it passed through the wall." It was not protected in any way. The distinction between the cases is manifest. The only evidence of negligence which we find in the record is the opinion of witnesses that the terra-cotta or fire-clay flue is liable to crack from heat and cold, A number of witnesses express the opinion that they are safe means of carrying off the smoke from stovepipes. As we have said, there is no direct evidence that the defendant's flue was cracked, and if so, that defendant agent had any notice thereof. There may be (503) *Page 374 circumstances and conditions from which a jury could infer such defect and knowledge. For the errors pointed out there must be a
New trial.
Cited: Rich v. Electric Co., 152 N.C. 694.