Herrick, J.:
An action arising out of. the same fire which gives rise to the appeal now here has heretofore been before us (North British & Mercantile Ins. Co. v. C. V. R. R. Co., 9 App. Div. 4), and in that case the referee found that the fire was not caused by the negligence of the defendant, and this court, after a consideration of the evidence, came to the conclusion that the decision of the referee in that respect was correct.
I have not been able to find, nor have counsel pointed out, any substantial difference.between the evidence in that case and the one now before us. ■
While, the fact that this court in a former case affirmed a judgment, where the finding as to negligence was directly the contrary to the finding in this case, is not conclusive (Underwood v. Cook, 3 N. Y. St. Repr. 467); and while it may well happen that, in a case that is somewhat- close upon the facts, the court, upon appeal, [513]*513will not disturb a finding made either way, and as different minds,, equally intelligent and upright, may take different views of the evidence and come to diverse conclusions, and there being evidence to-sustain either conclusion, the appellate court, under well-settled. rules, would not feel at liberty to- reverse either as against the-weight of evidence, yet conflicting decisions upon the same evidence-are to be avoided, if -possible, being calculated, in' the non-professional mind at least, to lessen confidence in the administration of' justice.
When,- therefore, a case is presented where,.upon conflicting evidence, or evidence from which different inferences may be drawn,, the trial courts have come to directly opposite conclusions, one of which we have already sustained, it becomes our duty to ascertain, if possible, the causes for such differences, whether improper elements have been allowed to enter in, or the evidence weighed and the facts considered upon erroneous principles.
In all contests over questions of fact upon conflicting evidence, or evidence susceptible of different inferences, the question as to who has the burden of proof resting upon him is a very important one, and the decision of that question may, and frequently does, practically determine the finding as to the facts. Hence, the holding of the trial court in that respect becomes a matter of importance.
Formerly, in a properly tried case, this could be ascertained by.an inspection of the rulings upon requests to find, but under the present practice that resource, as a general rule, is not open to us. It seems to mé, therefore, .that when there is an opinion we may properly look into that to ascertain the standpoint from which the trial court viewed the evidence, and see whether he came to its consideration with any erroneous views as to 'the rules which should govern him in its consideration. (Kenyon v. Kenyon, 88 Hun, 211, and cases cited.)
It is somewhat difficult in this case to determine precisely just what views the referee had as to the burden of proof.
In the course of his opinion he says : “ The demand by the bailor of his property in the possession of a bailee, and the simple refusal to deliver without explanation, is sufficient evidence of conversion —■ a loss or destruction of it, and would be deemed- sufficient proof to maintain an action and recovery of damages.
[514]*514“ Again, if the bailee alleges and proves that it has been destroyed -by fire, or had been stolen, he must show that the fire or the 'theft -occurred without his fault. •
“ Hence it may well ■ occur that the bailor, instead of proving a demand and a refusal, proves the destruction of the'property by fire. The party (plaintiff) has proved oné fact,, viz., that the fire destroyed -the property, but he has not proved the other fact, viz., that the fir.e '.occurred and destroyed the property without the fault of the bailee.
“ Now, I think it well established by the cases that the nature of an accident may itself afford prima facie proof of negligence. (Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534, 544; Story on Bailments, 338, and other cases cited in Russell Manf. Co. v. New Haven Steamboat Co., 50 N. Y. 121, 127.)
■ “ Negligence may be inferred from the circumstances of the casé. Where the accident is one. which, in the ordinary course of events, would not have happened but'for w.antnf proper care on the part of the defendant, it is incumbent upon him to show that he had taken such precaution as prudence would require, and the failure to furnish, the proof, if it existed, it would be in his ..power' to make, may subject him to the inference that, such precautions were omitted. (Scott v. London, etc., Docks Co., 3 Hurl. & C. 596.) ”
Taking these passages in connection with- the rest of'his opinion, it seems to me that he approached the consideration of the evidence and made his findings of fact upon the assumption that when the .fire was' proved that then the burden of proof rested upon the. "defendants to affirmatively prove that it occurred without negligence ripon their'-part. This, I think, was error. ■
The referee has held that the defendants were' acting as ware-.housemen in keeping the grain .in the elevator, and that such grain was retained in the elevator for the mutual benefit and. advantage of .the defendant corporations and of Ladd and Smallman, .and in so holding I think he was correct.
The complaint alleges the destruction of .the .grain by fire, and .also alléges. that such fire occurred by reason of. the defendants’ -negligence ;: the .answer, denies any negligence upon the part of the defendants, and the. question of negligence was practically .the only question litigated.' . . ■:
As a rules, the burden of proof remains where the .issue madefy [515]*515the pleadings places it, although, the weight of evidence on one side may have a controlling effect unless met by proof of the other party. (Blunt v. Barrett, 124 N. Y. 117.)
This rule has not been changed, nor the case of an action against a bailee for loss of merchandise made an exception to that rule by the case of Wimtringham v. Hayes ( 144 N. Y. 1), wherein it is said that, “ While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet, oftentimes, slight evidence will shift the harden to the bailee. In an action against a bailee for .loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence.”
The expression used in that and some other opinions as to the “ shifting ” of the burden of proof has led to some confusion and misapprehension as to the rule. The true rule, I think, is, as I have above .stated, the burden rests where the issue made by the . pleadings placed it, and it never changes.
“ During the progress of a trial. it often happens that a party gives evidence tending to establish his allegation, sufficient, it' may be, to establish it prima facie, and it is sometimes said the burden of proof is then shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima faeie
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Herrick, J.:
An action arising out of. the same fire which gives rise to the appeal now here has heretofore been before us (North British & Mercantile Ins. Co. v. C. V. R. R. Co., 9 App. Div. 4), and in that case the referee found that the fire was not caused by the negligence of the defendant, and this court, after a consideration of the evidence, came to the conclusion that the decision of the referee in that respect was correct.
I have not been able to find, nor have counsel pointed out, any substantial difference.between the evidence in that case and the one now before us. ■
While, the fact that this court in a former case affirmed a judgment, where the finding as to negligence was directly the contrary to the finding in this case, is not conclusive (Underwood v. Cook, 3 N. Y. St. Repr. 467); and while it may well happen that, in a case that is somewhat- close upon the facts, the court, upon appeal, [513]*513will not disturb a finding made either way, and as different minds,, equally intelligent and upright, may take different views of the evidence and come to diverse conclusions, and there being evidence to-sustain either conclusion, the appellate court, under well-settled. rules, would not feel at liberty to- reverse either as against the-weight of evidence, yet conflicting decisions upon the same evidence-are to be avoided, if -possible, being calculated, in' the non-professional mind at least, to lessen confidence in the administration of' justice.
When,- therefore, a case is presented where,.upon conflicting evidence, or evidence from which different inferences may be drawn,, the trial courts have come to directly opposite conclusions, one of which we have already sustained, it becomes our duty to ascertain, if possible, the causes for such differences, whether improper elements have been allowed to enter in, or the evidence weighed and the facts considered upon erroneous principles.
In all contests over questions of fact upon conflicting evidence, or evidence susceptible of different inferences, the question as to who has the burden of proof resting upon him is a very important one, and the decision of that question may, and frequently does, practically determine the finding as to the facts. Hence, the holding of the trial court in that respect becomes a matter of importance.
Formerly, in a properly tried case, this could be ascertained by.an inspection of the rulings upon requests to find, but under the present practice that resource, as a general rule, is not open to us. It seems to mé, therefore, .that when there is an opinion we may properly look into that to ascertain the standpoint from which the trial court viewed the evidence, and see whether he came to its consideration with any erroneous views as to 'the rules which should govern him in its consideration. (Kenyon v. Kenyon, 88 Hun, 211, and cases cited.)
It is somewhat difficult in this case to determine precisely just what views the referee had as to the burden of proof.
In the course of his opinion he says : “ The demand by the bailor of his property in the possession of a bailee, and the simple refusal to deliver without explanation, is sufficient evidence of conversion —■ a loss or destruction of it, and would be deemed- sufficient proof to maintain an action and recovery of damages.
[514]*514“ Again, if the bailee alleges and proves that it has been destroyed -by fire, or had been stolen, he must show that the fire or the 'theft -occurred without his fault. •
“ Hence it may well ■ occur that the bailor, instead of proving a demand and a refusal, proves the destruction of the'property by fire. The party (plaintiff) has proved oné fact,, viz., that the fire destroyed -the property, but he has not proved the other fact, viz., that the fir.e '.occurred and destroyed the property without the fault of the bailee.
“ Now, I think it well established by the cases that the nature of an accident may itself afford prima facie proof of negligence. (Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534, 544; Story on Bailments, 338, and other cases cited in Russell Manf. Co. v. New Haven Steamboat Co., 50 N. Y. 121, 127.)
■ “ Negligence may be inferred from the circumstances of the casé. Where the accident is one. which, in the ordinary course of events, would not have happened but'for w.antnf proper care on the part of the defendant, it is incumbent upon him to show that he had taken such precaution as prudence would require, and the failure to furnish, the proof, if it existed, it would be in his ..power' to make, may subject him to the inference that, such precautions were omitted. (Scott v. London, etc., Docks Co., 3 Hurl. & C. 596.) ”
Taking these passages in connection with- the rest of'his opinion, it seems to me that he approached the consideration of the evidence and made his findings of fact upon the assumption that when the .fire was' proved that then the burden of proof rested upon the. "defendants to affirmatively prove that it occurred without negligence ripon their'-part. This, I think, was error. ■
The referee has held that the defendants were' acting as ware-.housemen in keeping the grain .in the elevator, and that such grain was retained in the elevator for the mutual benefit and. advantage of .the defendant corporations and of Ladd and Smallman, .and in so holding I think he was correct.
The complaint alleges the destruction of .the .grain by fire, and .also alléges. that such fire occurred by reason of. the defendants’ -negligence ;: the .answer, denies any negligence upon the part of the defendants, and the. question of negligence was practically .the only question litigated.' . . ■:
As a rules, the burden of proof remains where the .issue madefy [515]*515the pleadings places it, although, the weight of evidence on one side may have a controlling effect unless met by proof of the other party. (Blunt v. Barrett, 124 N. Y. 117.)
This rule has not been changed, nor the case of an action against a bailee for loss of merchandise made an exception to that rule by the case of Wimtringham v. Hayes ( 144 N. Y. 1), wherein it is said that, “ While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet, oftentimes, slight evidence will shift the harden to the bailee. In an action against a bailee for .loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence.”
The expression used in that and some other opinions as to the “ shifting ” of the burden of proof has led to some confusion and misapprehension as to the rule. The true rule, I think, is, as I have above .stated, the burden rests where the issue made by the . pleadings placed it, and it never changes.
“ During the progress of a trial. it often happens that a party gives evidence tending to establish his allegation, sufficient, it' may be, to establish it prima facie, and it is sometimes said the burden of proof is then shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima faeie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains .throughout the trial.” (Heinemann v. Heard, 62 N. Y. 448; Heilman v. Lazarus, 90 id. 672 ; Spencer v. C. M. L. Ins. Assn., 142 id. 505.)
“As a general rule, where a bailee fails on demand to deliver to the bailor property to which the latter is entitled,, the presumption of liability arises, and if the goods cannot be found it furnishes the imputation of negligence' as the cause. * * *
“ But such prima facie case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee; then the onus continues upon the bailor to prove that it was chargeable to the want of care of the bailee. * * *
“ And although it may be that the proof given by him, explanatory of the reason for non-delivery, may disclose circumstances [516]*516which, in their nature, permit or .require the inference of negligence on his part, * * * the affirmative of the issue is not shifted" to the defendant, but remains through the trial with the plaintiff. * * * - ' "
“ In the present case the plaintiff alleged in his complaint and it appeared that the loss resulted from the destruction of the factory by fire. Erom that fact alone no presumption arose to furnish .suprima faeie case against the defendant. But upon the main issue, whether it was attributable to the negligence of the defendant, the burden was with the plaintiff.” (Stewart v. Stone, 127 N. Y. 500.)
The burden of proof is upon the plaintiff who alleges negligence against a warehouseman who accounts for his failure to deliver goods by showing "their destruction by fire.
The plaintiff must, in all cases, suing him for the loss of goods, allege and prove negligence. This burden is never shifted from him ; a demand and a refusal to deliver' unexplained are sufficient prima facie to show negligence, but if it appears either in the plaintiff’s or defendant’s proof that the goods were lost by fire, the evidence must show that .the fire arose from the negligence of the warehouseman. (Cluflin v. Meyer, 75 N. Y. 260; Lamb v. Camden & Amboy R. R. & T. Co., 46 id. 271.)
I think, .therefore, that the burden of proof of- .tiegligence of the defendants rested upon the plaintiff all through the case.
Neither do I think that the doctrine of res ipsa loquitur applies to this case.
The occurrence of fires without negligence is frequent, and the mere fact of a fire does not justify the inference or constitute a prima facie cáse of negligence. (Whitworth v. Erie R. Co., 87 N. Y. 413; Stewart v. Stone, 127 id. 500.)
The attendant or surrounding circumstances may characterize the fire as one caused by negligence,"but the fire alone does not speak 'for itself, and proof of the circumstances showing the fire to have, ■occurred through the negligence of the defendants must be given by the plaintiff; he cannot rest by merely proving the fire and then call upon the defendants to show that it did not occur through their negligence.
In this.case it does not seem to me that the evidence, in addition to. the mere proof of the fire itself, establishes affirmatively the fact [517]*517that it occurred by reason of the defendants’ negligence. As first above stated, the plaintiff’s .theory, which was apparently adopted by the referee, is that the arbor at the foot of the lofting leg became overheated and set fire to the accummulation of dust there, and the fire was then transmitted through the weighing bin into the receiving bin and thence through the wooden spout into the projection.
There is evidence - that the dust at the foot of the lofting leg had not been brushed away at the close of the day’s work, as the rules adopted for the working of the elevator required, although that is disputed by the foreman of the elevator; and there is also evidence that the arbor was liable to become overheated by friction, and that it required constant oiling, and that the tubes through which the arbor was oiled had been removed ; and also evidence that the dust from the grain was inflammable in characterand there is also evidence that at the close of the day’s work, and before nine o’clock in the evening, the arbor was somewhat heated, and that there Was a smell as though of something heated or burning, although there was no evidence of any fire at that time. The witness, testifying to the heat of the arbor, testified that it did not burn his hand in placing it upon it. There was evidence, also, that the watchman employed was inefficient. Notwithstanding this evidence I do not think that the facts in the case justify a finding that the fire was caused in the manner or originated at the place claimed by the-plaintiff.
The defendants controverted all the evidence as to the matters just stated, but assuming the plaintiff’s testimony to have substantiated them all, yet, unless those acts of negligence or omissions caused the fire, it cannot be said that it occurred by reason of the defendants’ negligence.
The finding that the fire occurred through the defendants’ negligénce is predicated upon the assumption that its origin was at the foot of the lofting leg, and that the defendants’ neglect in caring for the machinery at that point produced the fire, and that if the watchman had been efficient and alert he would have discovered it in its incipiency and extinguished it.
"Unless, then, it appears that it did so originate at the foot of the lofting leg, the whole foundation for the finding that the fire occurred by reason of the defendants’ negligence is swept away.
[518]*518The .first seen of the fire was between four and five o’clock in the morning in the west projection, about' thirty-five feet from the ground. . One witness testified'that he was in the building at the first outbreak of the fire and before any alarm was sounded, and that he saw fire in two places upon the first .floor. According to his¡ _ testimony .they were apparently small fires, and neither one of them was near the foot of the lofting leg or arbor.
Five other witnesses, four of them members of the fire department, came in there very shortly afterwards looking for the fire,'and all" of them testify that there was no fire in or upon the first floor of the building.
The lofting leg itself was composed of iron; there was no inflam-, mable material inside of it; the pulleys around which the belt passed "were of ironits lower end rested- in an iron boot, so that there; seemed, to be nothing that could furnish a blaze that, could be carried up through the interior of the pipe; the only inflammable material at or near the foot of the lofting leg was the dust, if any, the wooden box and the wooden floor; if the fire originated there it must have been the box. and floor that- furnished the burning material from which the fire would be communicated up through the receiving bin and thence through the spout into the west projection ; it could not go. up through the lofting leg, and must consequently have gone up directly from the floor. Not Only these facts, but the testimony of the witnesses I have referred to dispute the fact that the' fire originated either at the foot of the lofting leg or upon the first floor, so that neither, the alleged negligent care of the 'machinery of the lofting leg caused the fire, nor did the alleged inefficiency of the watchman' prevent its' early discovery, because however vigilant he may have been, he could not discover what did not there exist.
For these reasons the judgment should be reversed, the referee-discharged and a new trial granted, costs to abide the event.
All Concurred, except. Merwiñ, J., dissenting.
■ Judgment reversed, referee discharged, new trial granted, costs to j abide the event. .