91 W. Va. 308 | W. Va. | 1922
Plaintiff, an employee of the Hope Natural Gas Company, was injured by an explosion occurring at defendant’s gas compressor plant, known as Wright’s Station, recovered a judgment against defendant in the circuit court of Marion County for $8000, and defendant obtained a writ of error.
This station is used for compressing gas. It consisted of a main building and a smaller building located some 50 or 75 feet therefrom. In the smaller building there was a machine shop room and an auxiliary room, which were separated by a partition. In the main building were seven large gas engines, five of 350 and two of 450 horse-power; in the
There was a connection on the auxiliary engine in the auxiliary room made specially for starting the auxiliary engine by gas pressure, when the air was low or exhausted. This consisted of a temporary gas line from the main gas line on the outside of the auxiliary room and connected the main gas line to the auxiliary engine for the purpose of starting the auxiliary. A union was provided in the line to disconnect it from the main air system. The auxiliary engine sometimes was started by gas pressure, and one witness states it was so started the day preceding the accident.
On April 14, 1919, the plaintiff, who had been engaged in painting the ceiling and doing some other work in the main building, at quitting time went over to the auxiliary room where there were lockers in which the workmen kept their clothes, and while he was changing his clothing, an ell on the air line under the concrete floor of the auxiliary room blew
Plaintiff charges that the defendant: (1) ¡negligently employed and kept incompetent officers, agents and employees in and about the place of his employment; (2) negligently failed to make, promulgate and enforce proper rules and regulations; and (3) negligently failed to provide a reasonably safe place for plaintiff to work; he relies mainly upon the third ground to sustain the judgment. The declaration further avers that the defendant had not elected to pay into the Workmen’s Compensation Fund, and that therefore it was not entitled to avail itself of any of the common law defenses, such as the fellow-servant rule, assumption of risk, contributory negligence, or any defense that the negligence in question was that of some one whose duties were prescribed by statute. Defendant pleaded the general issue. It produced no witness to prove the cause of the explosion, but confined its evidence solely to proving that it was engaged at the time of the accident in both intra-state and inter-state commerce.
The facts in the case are by no means clear. This is apparent from the statement of the case gleaned from the testimony of the witnesses and statements in briefs of counsel. For example, a witness as well as counsel state that the air compressor was in the main building. There is no evidence that any air storage tank was used, but from our limited knowledge of gas compressor stations we can not believe that the air compressor was in the main building, but that the witness meant that the air storage tank was located there. The plaintiff was very much in the dark in making out his ease, as he
Plaintiff undertakes to account for the explosion by a process of elimination; that it could not have occurred had there, not been an explosive mixture of natural gas and air in the air line; that natural gas could have passed into the air line in three ways, one by being drawn in through the intake, as there was some gas constantly escaping in the main building; another by the improper use of gas — some, witnesses say it .was used in the air line to start the gas compressor engines when the air supply was low; and a third, by the use of gas, some say, to start the auxiliary gas engine when the air supply was low. If the gas was used to start the auxiliary, they say it might have leaked through into the air line through a union. We admit this expression is involved, but not more so than the testimony. There is no way in which the statements of the witnesses can be reconciled. We can not say from the record that gas was not used as a "starter” on the gas compressor engines when the air supply was low; one witness so states in effect, though the testimony is not clear, and we must confess that this, statement is hard to believe.' But however the gas became.mixed in the- air line, if this mixture was used to start the gas compressor engines, the witnesses account for the explosion by saying that the engine "backfired”, causing a flame or spark to ignite the mixture and hence the explosion. They say there was nothing on the premises that could have caused the explosion but gas and air • that air in the air line at the pressure shown would not have caused it, and hence their conclusion that there was an explosive mixture of gas and air in it. We are not called upon to account for the explosion, but as the case will have to go back for a new trial, we suggest that a proper layout of the machinery and a description of its proper use and connection will help much to clarify the situation. We
Defendant relies for reversal upon eleven assignments of error, but which may be grouped under four heads: (1) the admission of improper evidence; (2) the giving of improper instructions for plaintiff; (3) the refusal of certain instructions offered by defendant; and (4) the refusal of the court to-set aside the verdict and grant a new trial. We will discuss these in the order named.
' First, as to the admission of improper evidence. This may be considered under two divisions: (1) evidence showing a change in the location of the intake to the air line after the accident; and (2) opinion evidence of witnesses as to the cause of the explosion.
(1). It was shown by a number of witnesses that a short time after the explosion the defendant’s chief engineer at this station had the intake to the air line moved from a point in the main building to a point outside and about 60 or 75 feet away from the! main building, with the open end in the open air. The engineer says this was done to obtain cooler air. This change, plaintiff’s counsel doubtless argued to the jury, was a confession on defendant’s part that the intake to the air line when the explosion occurred was in the wrong place; that gas was constantly escaping in the main building and consequently some of this gas was drawn through the intake into the air line, and that this gaseous- air was the explosive mixture which caused the explosion. Plaintiff’s counsel do not so argue here. They now claim that the real purpose of showing this change was to show that the “location of the intake within the main building tended to cause the explosion or was one of the causes thereof”, but if the-real purpose of this evidence was not to show a confession of negligence on the part of the defendant we can not see why it was introduced at all. If they desired to show that the intake was improperly located they could have done so in some other way by competent testimony. There was no controversy about the location of the intake at the time of the explosion; the jury did not see the premises and no maps or drawings were exhibited,
This view is fully sustained by the great weight of authority. 29 Cyc. 616, and cases cited; 1 Wigmore’s Evidence, Sec. 283, and Supplement; Lay v. Elk Ridge Coal & Coke Co., supra; Hairston v. United States Coal & Coke Co., 66 W. Va. 324, 66 S. E. 473; Alcott v. Public Service Corporation, 78 N. J. L. 482, 32 L. R. A. (N. S.), Note, at page 1127. We adhere to our former decisions and hold that it was error to admit evidence of the change of the intake to the air line after the injury.
(2). Defendant claims that the facts showing conditions at Wright’s Station, before, at the time of, and immediately after the accident were all made intelligible to the jury, and therefore the opinions of witnesses as to the cause of the explosion were inadmissible, relying on the cases of Colebank v. Standard Garage Co., 75 W. Va. 389, 84 S. E. 1051; State v. Sixo, 77 W. Va. 243, 87 S. E. 267; Lawrence v. Hyde, 77 W. Va. 639, 88 S. E. 45; and other cases. In the Colebank case it was held error to permit witnesses to state in their opinion whether the speed of defendant’s automobile at the time it injured plaintiff was unreasonable; they did not state the rate per hour the automobile was running, a point upon which they had a right to express an opinion; but without
But in the present ease the facts showing the conditions before, at the time of, and immediately after the accident
The ordinary person knows véry little about the complicated machinery and operation of a gas compressor station; in fact there are very few persons, comparatively speaking, who know much, if any thing, about the construction and operation of such a plant. The machinery is complicated, and its movements are complex. Its parts and operation are extremely difficult to explain in terms that the ordinary person can understand; even the names of many of the parts do not mean any thing to the average person. They might be called by another name, and the average juror would not know the difference. .We think that this is a case where expert testimony would be of peculiar value, and that the opinion of one experienced in the repair or operation of the plant, present at the time of the explosion, or immediately afterwards, and based on conditions as he actually knew them, as to what caused the explosion, was clearly admissible.
As is stated in 3 Wigmore, Evidence, Sec. 1976:
“A large class of eases, embracing statements as to thq probability or the possibility of an event, the capacity or tendency of an act or machine, the cause or the effect of a fact, may fairly be grouped together, because the reason, why the Opinion rule is urged against them is in. general that the thing to which the witness testifies is not anything which he has observed, but is a quantity which lies in estimate only and is the result of a balancing of concrete data. This is no sufficient reason for excluding such statements; because it must always be impossible for a witness to reproduce in words absolutely all the detailed data which enter into his estimate, and there can be no danger* in receiving such an estimate from a competent witness. All that can be said of .the rulings is that probably some of them, in the final'result of the litigation in hand, have done less actual harm to justice than the others have done.”
The text is supported by many authorities cited, and we do
Second: We have carefully examined the instructions given for plaintiff and find no error. They involve no new principles and a discussion of them is unnecessary.
Third: Defendant offered four instructions which were refused, Nos. 1, 2, 6 and 7. No. 1 was peremptory, directing the jury to find for the defendant, and under the circumstances shown, we think was properly refused. We see no error in rejecting the remaining instructions, as defendant’s theory of the case was fairly covered by the instructions given at its' instance.
The only substantial error we find is that the court admitted evidence showing a change of the location of the intake to the air line after the explosion; because of this we reverse the judgment, set aside the verdict, and grant defendant a new trial.
Reversed and remanded.