49 Pa. Super. 535 | Pa. Super. Ct. | 1912
Opinion by
This plaintiff recovered a verdict of $1,000 as damages for injuries sustained by him in an explosion which occurred while he was operating a cement kiln for the defendant. This verdict was on a motion for judgment non obstante veredicto, set aside by the court below and a judgment was entered in favor of the defendant. At the same time a rule for a new trial was discharged.
The facts in substance are as follows: The defendant's plant consisted of seven rotary kilns, in which the ground cement rock is calcined. The fuel used consists of pulverized bituminous coal, mixed with air and supplied from storage bins to the kilns by means of a screw conveyor, 'at the end of which the fuel is brought into a blast pipe and through this by a forced draft into the kiln. The pulverized coal is ignited by the heat of the kiln as soon as it enters it and each kiln had its separate storage bin and conveyor. To regulate the flow of the coal from the bin to the kiln through the conveyor, there was a handle or
The plaintiff was in the defendant’s employ in the capacity of a cement burner, and had more than ten years’ experience in this character of work at the defendant’s and other mills. He had exclusive charge of kilns Nos. 6, 7 and 8, and interchanged with another workman in the care of kiln No. 5, who had the exclusive charge of Nos, 2, 3 and 4.
The duty of a burner is to see that the material is burned properly, the kilns kept in continuous motion while in operation, and to repair visible defects inside the kiln. When the coal is finely powdered and dry this material will flush, or flow into the kiln unless restricted by mechanical appliances, and if permitted to accumulate in the kiln it is hable to cause an explosion by the gases thus generated. It is alleged here that the explosion which caused the plaintiff’s injuries was due to the lack or absence of the inner tube in the conveyor, thus permitting the fuel to flow into the kiln too rapidly.
It is admitted that the defendant had no system or method of inspection of the conveyors while in use, and that no inspection had been made of this apparatus at any time.
The reasons given- for the conclusion reached by the trial judge in entering the judgment for the defendant, are set out at length in a very painstaking opinion filed with the order. He states that there was no evidence that this particular conveyor ever had an inner tube, or that it was called a Gifford conveyor, and in the absence of evidence as to the original condition of the machine there was no necessity for the jury to consider the question of inspection and further: the object of inspection is not to discover the original construction of a machine, but it is to
In charging the jury the trial judge said, “I also instruct you in a matter of law, that this is not the case of a defective machine; it is not the case of a machine that was supplied for use complete and fully equipped, and then by reason of breakage or by reason of wear became defective .... there is no evidence that this conveyor to the No. 6 kiln ever had an inner tube or not.”
It was rightly considered of special importance on the trial that the conveyor should be clearly identified by' some name that would distinguish its character and construction from others of different names. The plaintiff testified, “Q. Do you know the names of the conveyors that were in the Nazareth Cement Mills on June 18, 1908 (the date of the accident) ? A. Gifford. Q. Where had you been employed or had worked with Gifford machinery before? A. At the Phoenix, at Nazareth, and the White Hall. Q. When you saw a Gifford apart six years before, what did it consist of? A. It consisted of a screw con-/ veyor and a tube over or encircling it; the case was visible, the inside was concealed in a way that they can be examined easily by unbolting the lid or head end.” Edward Kem, an expert burner testified that, Gifford conveyors had an inner tube. This witness had worked with com veyors of this type at three other places; had seen them taken apart, and each had an inner tube around the conveyor; that the ones at kilns Nos. 2, 3 and 4, were not Gifford conyevors, but that at kilns Nos. 5, 6, 7 and 8, they were of that type or. kind. John E. Miller, testified that short conveyors were “U” shaped and were generally
We have carefully gone over this testimony and are constrained to believe that a jury would have been fully warranted in concluding that the short conveyors “No. 6” are well known by employer and employees as “Giffords,” and that they, when properly installed, were equipped with what all the witnesses call, an inner tube, to make it safer for use, and that the long conveyor was a substitute for the shorter type, and by reason of its greater length secured the same degree of safety without the inner tube which the shorter type did with it, the purpose in each construction being to prevent the very thing which the jury could reasonably have found to have been the cause of the accident in this case — an unexpected rush, flow or accumulation of coal in the kiln.
The proximate cause of the accident was shown with reasonable clearness to be the rush or flush of coal into the kiln, or it might possibly have been because the plaintiff did not turn over the conveyor at the proper time, or properly manage the air blasts, or to the lack of coal supplied, or the absence of an inner tube. The testimony in regard to each of these was conflicting, and every material fact alleged in regard to each of them was in a sense denied or contradicted, and as such disputed facts, they were submitted to the jury under proper instructions.
On trial the jury were told “some of the witnesses have said that the short conveyor was a conveyor that allowed more pulverized coal to go through, that there was more danger of flushing; other of the witnesses have said that it did not make any difference, that the coal would go through at any rate. Before you can find for the plaintiff on that branch of the case, you must find that the conveyor No. 6, the short conveyor, was more dangerous than that which was ordinarily in use in other mills.”
Conceding that the mere happening of the accident raised no presumption that it was due to the negligence of the employer, and that a specific act of negligence must be shown, Price v. Lehigh Valley R. R. Co., 202 Pa. 176; Higgins v. Fanning, 195 Pa. 599; Alexander v. Water Co., 201 Pa. 252, and that it is not permissible to guess at the cause and assume that it was something for which the defendant was responsible: Reese v. Clark, 146 Pa. 465.
But we have in this case a large number of intelligent witnesses who by experience are familiar with the operation of this appliance, and testified that in their opinion the explosion was caused by flushing of the coal and that it would have been entirely prevented or at least the risk would have been largely reduced by the use of an inner tube, so that it was not for the court to say, as a matter of law, “that this is not the case of a defective machine,” and by ignoring the plain and manifest duty as declared
The employer had the means at hand to find out the exact condition of affairs and it was his duty to know. The employee will not be presumed to have assumed the existence of defects which could only be discovered by special inspection; McKee v. Steel Co., 213 Pa. 333; Valjago v. Steel Co., 226 Pa. 514. The plaintiff had the right to assume that the machine was a reasonably safe one: Burt v. Jessup Steel Co., 229 Pa. 562; Reed v. American Dyewood Co., 231 Pa. 431; Bardsley v. Gill, 218 Pa. 56.
For the reasons above given the judgment is reversed and the judgment now directed to be entered on the verdict in favor of the plaintiff.