215 S.W. 444 | Tex. Comm'n App. | 1919
The plaintiff, Moreno, was injured while in the service of the defendant company by an explosion in its cement plant, and brought this action to recover damages, alleging that the explosion was caused through the negligence of defendant in permitting the accumulation of coal dust and other combustible substances in , the kiln room of the plant where he was át work. The defendant answered generally, denying the allegations of negligence, and specially pleaded the defense of assumed risk. The trial in the lower court resulted in a verdict and judgment for plaintiff, which was affirmed by the Court of Civil Appeals. 181 S. W. 221.
It is contended under other assignments that there is no evidence to support the finding of the jury that the explosion was caused
Plaintiff testified:
“I was passing by the door when the explosion occurred, when I was right opposite the motor. The grinder is in the direction where the explosion came out from. I don’t know how they dried the coal. I didn’t see any fire in there where the dryer was. • I don’t know the conditions of the room where the dryer and mixer were, with reference to dust. 1 have seen it there before the explosion; there was dust in the, room, dust all over there. I did not know that conditions of a room like that filled with coal dust, as I have described, was dangerous.”
The witness Binford testified:
“I am secretary and superintendent of defendant company, and am familiar with the place where plaintiff was injured. At the place where he was injured, the building is in the same condition as it was at the time when his injuries occurred. I don’t believe there has been any change in that part of the building since that time. I was not in town at the time the accident occurred. Personally, • I know nothing of the accident, nor as to where it occurred, except from the reports. I have a copy of the report of the accident. So far as I know, the physical conditions are the same in that part of the building where he was injured. The dryer is on the ground floor, and the grinder is on the same floor. * * * A coal grinding plant is one of the parts of a cement plant that has always received a great deal of attention, because of the extreme fineness to which we have to pulverize the coal. * * * It causes more or less trouble because the coal available in this country is a semibituminous or heavy lignite coal, and it has a tendency to fire, after being pulverized, quicker than some other coal. * * * Coal, in itself, without being mixed with air, or other conditions, is not explosive by itself; in other words, the coal could be ground and laid upon the floor and lay there without being disturbed or mixed with air and would not explode, but it is the surrounding conditions, the mixture of certain air .and gases, that causes it to explode. There is a small stoker fire under the dryer, which is fed by an automatic stoker.”
Oliver Dawson, who qualified as a chemical engineer, testified:
“I heard the testimony of the plaintiff. I casually examined the grinder. It is my opinion, based upon my experience and knowledge, that the conditions under which the grinding of the coal there were not safe, because the carbon-laden air was in contact with a possible ignition. The ignitial source of danger was the coal pulverizer. I do not say that the conditions when I ■ saw it were the same as when the accident • occurred. I only say that •if the conditions were the same, it was not safe.”
We are of opinion that the judgment of the Court of Civil Appeals and that of the [rial court should be affirmed.
The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
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