dissenting.
I respectfully dissent from the majority opinion in this case. The evidence established that employees of the Service Junk Company were using an acetylene cutting torch, or torches, while cutting some steel pipe in close proximity to a false ceiling on the main or top floor of the building involved. There was evidence that the cutting took place as close as 4 or 5 inches to the celotex material in the false ceiling. There is further evidence that there were brackets that were holding the pipes and that these brackets were fixed to wood which was positioned above the ceiling material. It is undisputed that the ceiling material of celotex would, if touched by a spark, smolder. It clearly appears in the evidence that this material, once ignited, continues to burn like a punk material and would hold heat for a long period of time. The acetylene torch cutting operation took place as late as 3 p.m. on the afternoon prior to the fire. The fire occurred sometime later. The first alarm was turned *200in at 1:41 a.m., about 10% hours later. Members óf the Omaha fire department first observed it confined to the roof of the center portion of the building at about the same location as the employees of the Service Junk Company were last seen working. One witness testified that when he first entered the buiPinu. ^e saw the fire and “it was like a glow towards the ceiling of the building.” The same witness, a retired captain of the fire department, when asked if he saw any fire down on the floor answered, “Not directly on the floor, I never; towards the ceiling, I did, it was glowing there.” The flame of an acetylene torch may be as high as 5,000 degrees Fahrenheit; The melting temperature of steel as was present in the steel pipes is around 2,600 to 2,700 degrees Fahrenheit. The ignition temperature of the ceiling material, which could bum like a punk, was somewhere around 1,500 degrees Fahrenheit. The ignition temperature of wood is generally around 700 degrees Fahrenheit. Ignited steel sparks from the use of an acetylene torch have ample heat to ignite material such as the celotex material in the false ceiling. During the cutting operation, steel sparks were observed flying in all directions, from the point of cutting, like a “Roman candle.” Material at a distance as far as 2 feet could be ignited by steel sparks as their temperature can be from 1,400 degrees Fahrenheit on up. The evidence shows that the workmen did not use a shield to protect the roof or the ceiling from sparks; that the pipe ran up through the false ceiling of celotex; that before starting to cut, the workmen made no examination of the ceiling material to determine if it were flammable; that no examination was made or ascertainment made as to what types of materials or what might be in the attic above the false ceiling; that they made at least two- cuts in the pipe close to the ceiling; and that the cutting was within 4 to 5 inches of the celotex material in the false ceiling.
• In evidence in this case are the following questions and answers given by an expert mechanical engineer: *201“Q. Professor, going to this ceiling material that you removed from the Meeks building, did you make any tests on that material to determine if it was flammable, if it would burn? A. Yes, I did. Q. And what were your findings in that regard? A. That material normally will not flame, but under the right conditions it will smoulder; that is, you hold a fire up to it, and as long as the fire is up against it, you will note some flame, but if you remove that fire, it will continue to burn like a piece of punk, and occasionally if that burning process continues and comes into contact with dust or paint or something on that order that may be on the surface of such material, you occasionally get a burst of flame. But otherwise under the right conditions it can continue to smoulder for long periods' of time(Emphasis supplied.)
The pipe that was being cut was fairly close to the center of the building. Fire captain James B. O’Brien, on arrival at the scene, observed-that it seemed as though the blaze was toward the middle and upper area of the building. Another fire department employee also placed the fire in this area.
Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. The law does not require that other possibilities of causátiom be negatived. All the law requires is that the inferences from the facts shall indicate with reasonable certainty the negligent act charged. Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N. W. 2d 584; Gilliland v. Wood, 158 Neb. 286, 63 N. W. 2d 147; Shields v. County of Buffalo, 161 Neb. 34, 71 N. W. 2d 701. The pertinent rule as applicable to this case is stated in Howell v. Robinson Iron & Metal Co., supra, and was evoked with reference to the facts about as similar as one can find to those in the case at bar as to causation of a fire. Therein it was stated: “The true rule as applied to this case, as is made clear by the cases cited herein, is that if different minds may draw different conclusions or inferences from *202the adduced evidence as to whether or not it has been shown with reasonable certainty that the fire was caused by the negligent acts charged, the matter at issue must be submitted to a jury.” (Emphasis supplied.)
I will not burden this dissent with a close recital of all of the evidence in the Howell case, supra. It is a recent case and the opinion was written by Judge Yeager. In that case, the court held that there was no. direct evidence as to. what caused the fire and none whatever as to the specific location of its beginning. In this case, we have facts, from which it can reasonably be inferred that the area in the building from which this fire was originated was; the same area in which the cutting operation with the acetylene torches was performed. In the Howell case, supra, the fire was. caused by the use of an acetylene torch in a wood and concrete building in Omaha, Nebraska. The walls were of cardboard material and the acetylene torch operation set the cardboard material on fire, or at least the court held that circumstantially the jury could infer such to be the fact. It seems to me, within the meaning of the above rule, that different minds, could draw different conclusions from this evidence as. to whether or not it has been shown with reasonable certainty that the fire was caused by the acetylene torch. It seems that the true purport of the majority opinion is to analyze the evidence and come to a conclusion factually upon the evidence presented that the greater weight of the evidence is with the inference that the fire must have been caused from some other unexplained and undefined possible source. The real point is that different minds, considering the common experience of mankind, could draw different reasonable conclusions or inferences as. to whether or not it has' been shown with reasonable certainty that the fire was caused by the acetylene torch operation happening at 3 pan. the previous; afternoon.
The only difference that I can see between the Howell case, supra, and the case at bar is the length of time *203that elapsed, it being about 3 hours in the Howell case and approximately 12 horns in the case at bar. But, the evidence is that the celotex material in the false ceiling could smolder for an indefinite period of time. I fail to see where the exact point of time that it came into- contact with other material that burst into- flame could be particularly significant. The point is that there is a probable cause and connection between the two events because of the continued smoldering intensity of the temperature in the punk material. The significance of the time elapse is for the jury. The authorities support this course of reasoning. In 22 Am. Jur., Fires, § 47, p. 625, it is stated as follows:: “Time, distance, and the fact that the fire burned over intervening tracts of land do not affect the question of the defendant’s liability, except in so far as- they relate to the probability of an intervening cause * * *. In the determination of the proximate cause, no- arbitrary limits can be fixed as to nearness in point of time * * * from the original starting of the fire. Much more important are the closeness of causal connection, the natural sequence of the original wrongful act, and whether the resulting loss should or might have been anticipated.”
The pertinency of the above language is apparent. The smoldering material, the negligent production of sparks in the operation of the acetylene torch in close proximity to the celotex material, set up a chain of causation. I do not think that the arbitrary selection of a time period should be the controlling consideration. If this be true, at what point of time then would we say that it was a short enough period that the jury would be allowed to come to the conclusion that the fire was started by the acetylene torch?
The majority opinion apparently holds that the fact that a door was unlocked and that a safe was open gives rise to a reasonable inference that the fire was caused by some other person or agency. I submit that this is speculation and conjecture and not the basis of reason*204able inference. The same argument was rejected in Howell v. Robinson Iron & Metal Co., supra.
The case should be submitted to the jury because of the admissions against interest made by the defendants. The defendant Mid-City Motors, Inc., in another action pleaded that the acetylene torch cutting operation caused the fire. This pleading was introduced in evidence as an admission against interest. Outside of the factual evidence introduced in the case,, which has been discussed, this admission alone was sufficient to carry the case to the jury. The majority opinion discusses at length the significance of an admission against interest of this type. It is not questioned that the admission was properly admitted in evidence, and the majority opinion does not so hold. The quotations from Corpus Juris Secundum and the other cases cited in the majority opinion simply hold that an admission against interest of this type is not conclusive and it may be rebutted by other evidence. With this conclusion and the holdings of these cases, I do not disagree. But, the affirmative evidence introduced by the plaintiffs, as set out here-before in this dissent, is certainly consistent with and supports the admission against interest that was offered and received against the defendants in this case.' It surely does not serve to rebut it. But, even assuming that it does tend to rebut it, it would still be a question for the jury to weigh the admission against interest together with all of the other evidence as to determination of the negligence of the defendants and the proximate cause of the fire.
The majority opinion holds that the expert witness called by the plaintiffs could not answer a hypothetical question eliciting his opinion as to the cause of the fire. The sufficiency of the expert’s foundation was not questioned. The testimony was rejected because the witness could not be permitted to testify as to an ultimate fact as this was an invasion of the province of the jury. I think that-this testimony is admissible and the doctrine *205announced in the recent case of Petracek v. Haas O.K. Rubber Welders, Inc., 176 Neb. 438, 126 N. W. 2d 466, applied. In that case, it was said: “Ordinarily it is ferror to permit an expert witness to- give his opinion on the ultimate fact to be determined by the jury. * * * It is not a valid objection to the evidence of an expert that the answer covers the whole ground the jury is to decide, if the case is one to he wholly resolved hy such evidence” (Emphasis supplied.)-
This court is faced with a jury verdict finding causation in this case. It is not suggested that it was not properly instructed on the issue of circumstantial evidence.
It seems to me that we are substituting our judgment on the weight of the circumstantial evidence rather than a determination as to whether there is sufficient evidence for the jury to weigh.
I am authorized to state that Judge Spencer and Judge Boslaugh concur in this dissent.