Opinion
Rehearing Denied Sept. 6, 1972.
Page 749
Tilly & Graves, Harmon S. Graves, III, Denver, for plaintiff-appellant.
Sheldon, Bayer, McLean & Glasman, Richard H. Glasman, Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Glens Falls Insurance Company, as subrogee of its insured's rights, brought this action against Denver Building Supply Company to recover approximately $14,000 which plaintiff had paid on a claim for damages resulting from a fire. After a trial to the court, judgment was entered in favor of defendant and the complaint was dismissed. Plaintiff appeals from that judgment. We affirm.
Plaintiff alleged that the fire resulted from the negligence of defendant's employees. During the trial plaintiff introduced evidence to establish negligence and also relied on the doctrine of Res ipsa loquitur to prove its case. The trial court found that defendant's employee had started the fire but concluded that, 'plaintiff has failed to prove any specific acts of negligence on the part of the defendant's employees, and under the doctrine of Res ipsa loquitur, the defendant's employees have come forward and proved to the satisfaction of the court that they were not negligent.'
On appeal plaintiff admits that it failed to prove any specific acts of negligence on the part of defendant but urges that the trial court erred in ruling that the defendant had overcome the presumption of negligence created by the doctrine of Res ipsa loquitur.
The trial court having found that defendant's employee started the fire, and having determined that the doctrine of Res ipsa loquitur did apply, the only issue remaining was whether the evidence rebutted the presumption of negligence. In Weiss v. Axler, 137 Colo. 544, 328 P.2d 88, it is stated,
'(T)he sole question in a res ipsa loquitur case is: has the defendant overcome the prima facie case of negligence against him by establishing by evidence satisfactory to the jury (judge herein) that he was not negligent?
'In determining the sole question * * * it is the province of the * * * (trier of fact) generally to consider the explanation factually and from the standpoint of credibility of the witnesses. * * *'
On review of this issue an appellate court 'need only ascertain whether sufficient evidence was presented at the trial to warrant the entry of the judgment.' Branco Eastern Company v. Leffler, 173 Colo. 428, 482 P.2d 364.
The evidence disclosed that the fire broke out shortly after defendant's employees had completed the laying of sheet vinyl floor covering in a lavatory. While performing this work it was necessary to warm the vinyl. This was done with a blowtorch. The employee who had installed the vinyl covering testified that he followed the same procedures he had used for eight years and that he had never started a fire. An expert witness, testifying on behalf of plaintiff, stated it was his opinion, based solely on the evidence in the case, that the fire probably was started when the flame from the blowtorch ignited sawdust which he was asked to assume had gotten under the shower stall during the sanding or sweeping phases of the work.
In its findings on the issue of negligence the court stated that no standard of conduct was presented and that there was no evidence to show that defendant's employees violated any standard so as to render them negligent. Plaintiff asserts that defendant had the burden of proving the standard and that by failing to do so, it did not overcome the presumption of negligence.
However, a standard of conduct, or custom, in a trade or business is only one element to be considered in determining the presence or absence of negligence. In Square Deal Machine Co. v. Garrett Corp., 128 Cal.App.2d 286, 275 P.2d 46, 52 A.L.R.2d 893, it is stated,
'But the law is clear that conformity to custom in the trade does not conclusively eliminate negligence or contributory negligence as a matter of law, and conversely, failure to adhere to custom does not establish negligence or contributory negligence.'
See Chabot v. Williams Chevrolet Co., 30 Colo.App. 277, 491 P.2d 612.
Standards or customs of a trade or business are frequently useful aids to the trier of the facts in determining the presence or absence of negligence. In this respect they are similar to the opinions of experts. However, the ultimate decision must be based on the determination of whether the defendant failed to do an act which a reasonably prudent person would do, or did an act which a reasonably prudent person would not do, under the same or similar circumstances, to protect others from harm. Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069. See Colorado Jury Instructions 9:2.
The findings and conclusions of the trial court are supported by the evidence and, accordingly, will not be disturbed on review. Corbin Douglass, Inc. v. Kelley, 28 Colo.App. 369, 472 P.2d 764.
In its brief defendant asserted that the doctrine of Res ipsa loquitur should not have been applied in this case. However, in view of our affirmance of the trial court's conclusion that the presumption of negligence had been rebutted, determination of this issue is unnecessary.
Judment affirmed.
DWYER and SMITH, JJ., concur.