New Aetna Portland Cement Co. v. Hatt

Decision Date07 March 1916
Docket Number2696.
PartiesNEW AETNA PORTLAND CEMENT CO. v. HATT.
CourtU.S. Court of Appeals — Sixth Circuit

Luman W. Goodenough and Irvin Long, both of Detroit, Mich., for plaintiff in error.

Claude H. Stevens, of Detroit, Mich., and Benj. F. Reed, of Lapeer Mich., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and COCHRAN, District judge.

WARRINGTON Circuit Judge.

The administrator recovered judgment against the cement company for alleged negligence resulting in the death of his intestate. At the date of the death the company was maintaining a cement factory in Genesee county Mich., and operating the factory both day and night. The portions of the factory which are important here were the coal room and kiln room. The deceased was in the employ of the company and worked at night in the coal room as an oiler. It is enough to say of the process of manufacture that a mixture of marl and clay, called 'slush,' was pumped into rotating kilns, maintained in the kiln room, and fused into pellets of various sizes through the application of heat generated by burning coal dust. The coal dust was obtained by passing bituminous slack coal through grinders and dryers in the coal room; 92 per cent. of the product would pass through a 100-mesh sieve-- as the company's chemist stated, it was 'as fine as flour.' After the coal was so pulverized and dried, it was carried by gravity through a slightly inclined tube into the lower portion of an elevator which was maintained near the southeast corner of the coal room and within about 4 feet of a brick wall separating that room from the kiln room. The elevator stood in an open concrete pit, some 4 1/2 feet in depth below the level of the floor and extending into the coal room a distance of 3 to 4 feet from the west and south sides of the lower portion of the elevator, called the 'boot.' The elevating device extended from the floor of the pit to a cupola at the roof of the building, and was incased in sheet steel or iron. The elevator was originally designed for carrying all the coal dust from the boot to a point in the cupola, where provision was made for discharging the dust into a screw conveyer and transferring it thence to the kilns of the kiln room.

The casing surrounding the boot of the elevator had fallen into such disrepair as to admit of the escape of coal dust into the pit. It was not an uncommon occurrence to allow the coal dust there to accumulate to a depth of several feet. When these accumulations were suffered to remain in the pit for a time not definitely shown-- the company's chemist being of opinion that they would not 'get afire, if cleaned out every 12 hours'-- the dust would develop heat to the degree of spontaneous combustion. This was a source of danger to employes, since, as the witnesses in substance say, any appreciable quantity of coal dust falling directly upon the burning portion of the dust, and so as to mix with air at the place of contact, would result in an 'explosion,' as some of the witnesses term it, but rather, as we understand in a dangerous flash of fire. Indeed, while no witness was produced who saw the deceased at the moment he received his injuries, the facts and circumstances shown justify the conclusion, and it is virtually conceded, that he was so badly burned by one of these so-called explosions as to cause his death some hours later.

The day foreman sought to avoid the explosions. One method was to 'wet the dust down' by the application of water from a hose conveniently located; but in practice this would cause the fire to smoulder; it would not extinguish the fire. Another plan of the foreman was to remove the accumulations to a place outside of the factory; this, however, was done only in daytime and at irregular intervals, some extending over several days; there was no rule charging the duty of removal upon any particular employes, and the day foreman himself usually made such removals as occurred. It is true that one of the witnesses said the coal dust so accumulating could be returned to the elevator and carried thence to its normal destination, but admittedly this was impracticable after spontaneous combustion had set in and water had been applied. Further, the day foreman called the attention of Mr. Bumps, who was superintendent of the entire plant, to the defective condition of the portion of the elevator in question, stating, 'I talked with Mr. Bumps about it, and he told me he ought to fix it up,' and also stating that the superintendent 'would not give a man time to repair it, or fix it up, because he wanted the machinery kept going.'

At the close of all the evidence the company moved that a verdict be directed in its favor, relying in substance upon the grounds: (a) Negligence of fellow--servants; (b) assumption of risk; (c) contributory negligence; (d) decedent was not at the time of receiving his injury engaged 'in the course of his business or employment. ' The motion was denied. The company then presented requests for special instructions to the jury, which were in substantial accord with the grounds relied on in the motion to direct. The contention made here is to the same effect.

The theory of the defense overlooks, in the first place, the company's responsibility for the continuing state of disrepair of the elevator casing. The company is a corporation organized and existing under the laws of the state of Maine, and, so far as appears here, Superintendent Bumps was its principal and controlling representative in Michigan; concededly he was the vice principal. Clearly, the company was chargeable through him with knowledge of the unsafe conditions prevailing at the elevator pit. Leonard Martin Const. Co. v. Highbarger, 175 F. 340, 342, 343, 99 C.C.A. 128, and citations (C.C.A. 6th Cir.). It is sought to excuse the company as respects the holes in the casing by reason of chemical conditions causing it to rust out quickly; but this could not absolve the company from a reasonable discharge of its continuing duty to maintain a safe place to work (Kreigh v. Westinghouse & Co., 214 U.S. 249, 256, 29 Sup.Ct. 619, 53 L.Ed. 984); and here weeks, if not months, were allowed to elapse without attempting to repair or replace the defective parts of the casing.

It is in effect urged that the dangers arising from this apparent neglect of the company should have been avoided by the employes through proper care of the pit; that this was a mere detail of the work which could rightfully be imposed upon them. If such a theory as this be accepted, it is enough to say that there was a total absence of system or rule created or imposed by the superintendent or any authorized official touching the treatment of coal dust escaping into the pit. It results that the company itself was guilty of negligence as to the continuing disrepair of the casing and the consequent and recurring dangers due to accumulations of coal dust in the elevator pit; and it is, therefore, not important whether the decedent's fellow servants were guilty of concurring negligence or not. Kreigh v.

Westinghouse & Co., supra, at page 257 of 214 U.S., 29 Sup.Ct. 619, 53 L.Ed. 984; Texas & Pacific Ry. v. Howell, 224 U.S. 577, 582, 32 Sup.Ct. 601, 56 L.Ed. 892; Standard Oil Co. v. Brown, 218 U.S. 78, 85, 30 Sup.Ct. 669, 54 L.Ed. 939; Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700, 702, 1 Sup.Ct. 493, 27 L.Ed. 266; Bryson v. Gallo, 180 F. 71, 76, 103 C.C.A. 424 (C.C.A. 6th Cir.); Meers & Dayton v. Childers (decided by this court January 10, 1916) 228 F. 640, . . . C.C.A. . . . .

As to assumption of risk, it cannot be said as matter of law, that the decedent comprehended the conditions which would bring about an explosion. True, he had worked in the same room and in the same capacity for a time during the working season of the previous year and for something like two months during the season in question. This, it must be conceded, was calculated to admonish him of the fact that explosions might occur; but it is not shown that he was ever advised or warned of the conditions that would produce an explosion, and in view of the nature of the conditions, as well as the circumstances shown, the question of decedent's appreciation of the risk was a question of fact. Casey-Hedges Co. v. Oliphant (decided January 4 1916) 228 F. 636, . . . C.C.A. . . .; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 596, 125 N.W. 724, 27 L.R.A.(N.S.) 953, 136 Am.St.Rep. 454, 19 Ann.Cas. 1152; American Car & Foundry Co. v. Matzok, 228 F. 179, . . . C.C.A. . . . (C.C.A. 3d Cir.); and see Boston & M.R. v. Baxter, 228 F. 257, 262, . . . C.C.A. . . . (C.C.A. 1st Cir.). Shortly before the injury, it became necessary to repair the coal dust conveyer in the cupola, and the night foreman seems to have given directions to two men to make the repair; a ladder extended from the floor to a platform maintained about the cupola at a point some six feet below the top of the elevator; while the work was in progress upon the conveyer, the deceased received his injuries. It is shown that there were openings between the planks which formed the floor of the platform, and that considerable quantities of coal dust had gathered upon these planks. It does not appear, however, that the deceased had any duty calling him to the platform or that he was in fact upon it at the time the men were working there. The machinery in the cupola was oiled only in the daytime; it is open to fair inference that the decedent had no occasion at any time to go upon the platform; and, apart from the question of his knowledge of the conditions necessary to produce an explosion, it does not appear that he knew of the accumulations of coal dust on the platform. We think it is fairly deducible from all the...

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