Pacific Hardware & Steel Co. v. Cheim

DRAPER, J.

A fire which originated in defendant’s lumber yard spread to the adjoining building of plaintiff. This action is for damages for the loss sustained by plaintiff. The fire was started by three 7-year-old boys who were playing with matches in a building called the “tank house” which, although located on defendant’s property, was but slightly used in his business. It is not wholly clear whether plaintiff’s ease was tried on the theory that defendant proximately contributed to spread of the fire by negligent maintenance of his property

(Reid & Sibell

v.

Gilmore & Edwards Co.,

134 Cal. App.2d 60 [285 P.2d 364]), or facilitated its start by letting combustible waste materials accumulate in the small building and by failing to reasonably guard against assertedly foreseeable use of that building by children for play.

Judgment was entered upon jury verdict in favor of plaintiff. After hearing on defendant’s motion for new trial, the court filed memorandum opinion which concluded with the statement “motion for a new trial... is hereby granted.” The next day, order granting new trial “on the ground of insufficiency of the evidence to justify the verdict” was filed. Plaintiff moved to set aside the second of these orders, and that motion was granted. Plaintiff (by notice filed before the order of vacation) appeals from both orders granting new trial, and defendant appeals from the order vacating the second new trial order.

Disposition of the appeal from the first order will determine the issues. The question is whether that order was based upon the ground of insufficiency of the evidence to sustain the verdict. The portion of the order relevant to that question is:

“The second proposition advanced by defendants presents a more serious question and that is whether the evidence produced by the plaintiff indicates evidence having sufficient probative weight to indicate that the defendants were negligent in the maintenance of their premises, particularly the tank house and if that evidence, assuming it supports the plaintiff’s position that the defendants were negligent, was of sufficient strength to indicate that that negligence was the proximate and direct cause of the fire which destroyed plaintiff’s property. It is felt that the evidence adduced at the trial by the plaintiff through the testimony of the two boys directly connected with the fire and that of Carol Johnson, who was the first person except the boys to see the fire, fails to