McKee, J.:
The appeal in this case comes from a judgment and order denying the motion of appellant for a new trial in an action to recover damages for the destruction of certain property of the respondent, by a fire caused, as alleged, by the negligence of-the appellant and its employees in conducting and managing its warehouse in which the property had been stored.
The case was tried by the Court with a jury, and a verdict was rendered against the appellant. If there was any evidence to warrant the verdict we can not review it on appeal. It is conclusive upon us, not only on the question of negligence, but upon all the allegations in the complaint material to recovery in the action. (Algier v. Steamer Marie, 14 Cal. 167; Brown v. Brown, 41 id. 88; Trenor v. C. P. R. R. Co., 50 id. 222.) It is, however, contended that there was no evidence to sustain the verdict, and that the Court below erred in denying a motion for a nonsuit.
It was proved on the trial that the respondent had stored in the appellant’s warehouse sixty-four bales of wool of a certain value per pound, which, on demand and tender of the storage due upon it, the appellant refused to deliver to the [172]*172respondent, assigning, as a reason, that the warehouse and all it contained, except about three bales of wool, which were returned to him, had been consumed by fire.
A prima facie ease of negligence is made out against a warehouseman, who refuses to deliver property stored with him, upon proof of demand and refusal. Upon such proof alone the burden is on him to account for the property; otherwise he shall be deemed to have converted it to his own use. But if it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the- result of the negligence of the warehouseman. (Harris v. Packwood, 3 Taunt. 264; Beardslee v. Richardson, 11 Wend. 26; Browne v. Johnson, 29 Tex. 43; Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271; Jackson v. Sac. Val. R. R. Co., 23 Cal. 269.)
The negligence of the appellant, as the proximate cause of the loss of the property by fire, thus became the essential fact to recovery; and the burden of proof was upon the plaintiff in the action. It was incumbent on him to prove that the defendant had, by some act of omission, violated some duty, by reason of which the fire originated; or that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted, or contributed to cause or permit, the fire by which the property was destroyed.
Direct and positive evidence of negligence as a fact is not required. Any circumstances which tend to prove it, or from which it may be reasonably inferred, are sufficient. And when such evidence has been given on the trial of an action, it is not for the Court to usurp the disposition of the fact by ordering a nonsuit. Such an order should not be made, unless there is no evidence at all, or a mere scintilla of evidence wholly insufficient for the consideration of the jury, or unless the facts are agreed upon, or admitted, and, in the judgment of the Court, are insufficient to constitute a cause of action. Upon facts admitted, or proved and found, it is the duty of the Court to say what the law applicable to them is. But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or consists of circumstances from which inferences may be drawn for or against [173]*173it, it is the province of the jury to determine, under instructions by the Court, whether the evidence establishes it as the proximate cause of the injury complained of.
Applying these principles to the record before us, we find there was no error in sending the case to the jury. For the evidence upon which the plaintiff rested went to show that the building, up to the time of the fire, had been used by the defendant as a warehouse and railroad depot, and was in charge of two employees of the defendant, one of whom was its local agent, and the other its warehouse-keeper. In the warehouse, cut off from the northern end of the building, there was adjoining the office and sitting-room of the railroad depot, a bed-room in which the keeper slept every night. The room was about fourteen feet square; its walls were constructed of upright redwood boards, about fourteen feet high, which were lined with cloth and paper. It was occupied with the bed and furniture of the keeper, and on the walls hung his clothes and files of newspapers. On a shelf against one of the partition walls in the warehouse were kept several lamps trimmed and ready for use. On the evening of the fire, the local agent had left the warehouse in charge of the keeper, whose duty it was to “ shut up the doors of the warehouse and fasten it up for the night.” Having performed that duty, the keeper himself went to supper, and after supper returned to the warehouse. When he returned he went into the office, lit one of the lamps, took it into his bedroom, and set it down on a little stand at the head of his bed, between the window and bed, and about three feet from the window. He remained while he changed his clothes, and dressed himself for the purpose of going out to visit some friends. Having finished his toilet, he locked up and left the warehouse.
What he did with the lighted lamp before leaving is thus stated by himself: "After I had partially changed my clothing, I returned to the office and remained there perhaps half an hour or three quarters of an horn*; * * * I think I extinguished my lamp and went away. * * * No lamp was burning when I left the depot. When I came out of the office into the sitting-room I turned down the lamp, blew it out, and set it on a little shelf within the office, to the left of [174]*174the office door. * * * I looked at it, saw it was out, and left it.” About an hour or so after he had gone the warehouse was afire.
The first person to observe the fire was the proprietor of a hotel, situate about three hundred feet from the warehouse. Seated in the front office of the hotel, looking through the glass window of the door of the office, hi's attention was arrested by a sudden flash of light, which momentarily lighted up the warehouse and then went out, leaving the warehouse enveloped in smoke. Remarking to some one near him that the warehouse was afire, he ran out and gave the alarm, Those whom the fire alarm drew first to the burning building, discovered, as they ran to it, the fire dropping from about the center of the warehouse, very near to the locality of the bedroom and office; and on reaching the spot, they kicked in the bedroom and office windows, and saw the office filled with smoke and the bedroom afire—the flames running up the partition walls and over the bed.
There is no doubt that the warehouse-keeper had the right to light the lamp, and use it in the bedroom and office before leaving the warehouse; and it was reasonable to infer that a careful use of the lamp would not have set fire to the warehouse. But it would also be a reasonable inference that a negligent use of the lamp might have occasioned the fire; and the question arose whether, under all the circumstances, in connection with the use of the lamp, the warehouse-keeper was careless in using the lamp while in the bedroom and office, or in the extinguishment of it before he left the warehouse.
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McKee, J.:
The appeal in this case comes from a judgment and order denying the motion of appellant for a new trial in an action to recover damages for the destruction of certain property of the respondent, by a fire caused, as alleged, by the negligence of-the appellant and its employees in conducting and managing its warehouse in which the property had been stored.
The case was tried by the Court with a jury, and a verdict was rendered against the appellant. If there was any evidence to warrant the verdict we can not review it on appeal. It is conclusive upon us, not only on the question of negligence, but upon all the allegations in the complaint material to recovery in the action. (Algier v. Steamer Marie, 14 Cal. 167; Brown v. Brown, 41 id. 88; Trenor v. C. P. R. R. Co., 50 id. 222.) It is, however, contended that there was no evidence to sustain the verdict, and that the Court below erred in denying a motion for a nonsuit.
It was proved on the trial that the respondent had stored in the appellant’s warehouse sixty-four bales of wool of a certain value per pound, which, on demand and tender of the storage due upon it, the appellant refused to deliver to the [172]*172respondent, assigning, as a reason, that the warehouse and all it contained, except about three bales of wool, which were returned to him, had been consumed by fire.
A prima facie ease of negligence is made out against a warehouseman, who refuses to deliver property stored with him, upon proof of demand and refusal. Upon such proof alone the burden is on him to account for the property; otherwise he shall be deemed to have converted it to his own use. But if it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the- result of the negligence of the warehouseman. (Harris v. Packwood, 3 Taunt. 264; Beardslee v. Richardson, 11 Wend. 26; Browne v. Johnson, 29 Tex. 43; Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271; Jackson v. Sac. Val. R. R. Co., 23 Cal. 269.)
The negligence of the appellant, as the proximate cause of the loss of the property by fire, thus became the essential fact to recovery; and the burden of proof was upon the plaintiff in the action. It was incumbent on him to prove that the defendant had, by some act of omission, violated some duty, by reason of which the fire originated; or that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted, or contributed to cause or permit, the fire by which the property was destroyed.
Direct and positive evidence of negligence as a fact is not required. Any circumstances which tend to prove it, or from which it may be reasonably inferred, are sufficient. And when such evidence has been given on the trial of an action, it is not for the Court to usurp the disposition of the fact by ordering a nonsuit. Such an order should not be made, unless there is no evidence at all, or a mere scintilla of evidence wholly insufficient for the consideration of the jury, or unless the facts are agreed upon, or admitted, and, in the judgment of the Court, are insufficient to constitute a cause of action. Upon facts admitted, or proved and found, it is the duty of the Court to say what the law applicable to them is. But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or consists of circumstances from which inferences may be drawn for or against [173]*173it, it is the province of the jury to determine, under instructions by the Court, whether the evidence establishes it as the proximate cause of the injury complained of.
Applying these principles to the record before us, we find there was no error in sending the case to the jury. For the evidence upon which the plaintiff rested went to show that the building, up to the time of the fire, had been used by the defendant as a warehouse and railroad depot, and was in charge of two employees of the defendant, one of whom was its local agent, and the other its warehouse-keeper. In the warehouse, cut off from the northern end of the building, there was adjoining the office and sitting-room of the railroad depot, a bed-room in which the keeper slept every night. The room was about fourteen feet square; its walls were constructed of upright redwood boards, about fourteen feet high, which were lined with cloth and paper. It was occupied with the bed and furniture of the keeper, and on the walls hung his clothes and files of newspapers. On a shelf against one of the partition walls in the warehouse were kept several lamps trimmed and ready for use. On the evening of the fire, the local agent had left the warehouse in charge of the keeper, whose duty it was to “ shut up the doors of the warehouse and fasten it up for the night.” Having performed that duty, the keeper himself went to supper, and after supper returned to the warehouse. When he returned he went into the office, lit one of the lamps, took it into his bedroom, and set it down on a little stand at the head of his bed, between the window and bed, and about three feet from the window. He remained while he changed his clothes, and dressed himself for the purpose of going out to visit some friends. Having finished his toilet, he locked up and left the warehouse.
What he did with the lighted lamp before leaving is thus stated by himself: "After I had partially changed my clothing, I returned to the office and remained there perhaps half an hour or three quarters of an horn*; * * * I think I extinguished my lamp and went away. * * * No lamp was burning when I left the depot. When I came out of the office into the sitting-room I turned down the lamp, blew it out, and set it on a little shelf within the office, to the left of [174]*174the office door. * * * I looked at it, saw it was out, and left it.” About an hour or so after he had gone the warehouse was afire.
The first person to observe the fire was the proprietor of a hotel, situate about three hundred feet from the warehouse. Seated in the front office of the hotel, looking through the glass window of the door of the office, hi's attention was arrested by a sudden flash of light, which momentarily lighted up the warehouse and then went out, leaving the warehouse enveloped in smoke. Remarking to some one near him that the warehouse was afire, he ran out and gave the alarm, Those whom the fire alarm drew first to the burning building, discovered, as they ran to it, the fire dropping from about the center of the warehouse, very near to the locality of the bedroom and office; and on reaching the spot, they kicked in the bedroom and office windows, and saw the office filled with smoke and the bedroom afire—the flames running up the partition walls and over the bed.
There is no doubt that the warehouse-keeper had the right to light the lamp, and use it in the bedroom and office before leaving the warehouse; and it was reasonable to infer that a careful use of the lamp would not have set fire to the warehouse. But it would also be a reasonable inference that a negligent use of the lamp might have occasioned the fire; and the question arose whether, under all the circumstances, in connection with the use of the lamp, the warehouse-keeper was careless in using the lamp while in the bedroom and office, or in the extinguishment of it before he left the warehouse. If he was careless in its use or extinguishment, and that carelessness caused the lamp to explode or otherwise ignite any inflammable matter near to it which fired the building,. the fire would be attributable to the negligence of the defendant.
Now, it was an indisputable fact that the warehouse was fired from some cause; it was also indisputable, that the fire occurred while the warehouse, in which the keeper had been using a lighted lamp, was under the lock and key of the defendant, and soon after the warehouse had been closed by the keeper for the night; and (as the evidence tended to show) .the fire originated at, or “ very near” the bedroom and office [175]*175in the warehouse in which the lamp had been used. It is manifest that these facts and circumstances point, somewhat at least, in the direction of the lamp as the cause of the fire. And even if inferences to be drawn from them as to the origin of the fire were uncertain and controvertible, yet as differences of opinion upon the subject might reasonably exist in the minds of intelligent men, the facts and circumstances were for the consideration of the jury and not for the Court. It was for the jury to determine from them, in connection with the other circumstances in the case, whether the warehouse-keeper used due care in respect to the lamp, its use and extinguishment; and whether the fire originated in his carelessness or from accidental causes, such as spontaneous combustion of the wool in the warehouse. Defendant’s counsel attributed the fire to that cause. But there seems to be nothing in the evidence in the record to sustain his theory. And, however that may be, there was in the evidence of the case sufficient to warrant the Court in submitting it to the consideration of the jury.
There was, therefore, no error in denying the motion for a nonsuit, nor did the Court err in overruling objections which were made at the trial to the admission of evidence which tended to show the condition of the building at the time of the fire, and all the facts and circumstances connected with the fire. These were properly allowed to go to the jury for their consideration upon the issue submitted to them.
The Court may have erred in denying the defendant’s motion to strike out the averment in the complaint, that “ the defendant was the owner of and operated a railroad in the county,” etc., but it was error without injury; for the fact that the defendant was in possession of the building and used it as a warehouse and depot in connection with its railroad, was proved in the case without objection; and it was inseparably connected with the evidence as to the use of the warehouse. We can not, therefore, perceive how the averment of the fact in the complaint tended to “ irritate and excite the prejudices of the jury against the defendant.” There is nothing in the record suggestive even of the existence of such prejudices; and nothing to overcome the presumption that the verdict [176]*176was a fair expression of judicial opinion warranted by the evidence, submitted to the jury for their consideration.
Some parts of the charge of the Court may be subject to verbal criticisms, but we see nothing in it inharmonious or misleading. Taken as a whole it fairly submitted the case to the jury; and under such circumstances the verdict will not be disturbed for mere inaccuracies or errors, from which no possible injury could have resulted to the defendant.
The newly discovered evidence upon which the defendant asked for a new trial was cumulative.
We can not say that the damages given by the jury are excessive, or appear to have been given under the influence of passion or prejudice.
No error prejudicial to the defendant appearing in the record, the judgment and order appealed from are affirmed.
Eoss, Sharpstein, and Myrick, JJ., concurred.
McKinstry, J., concurred in the judgment.