Barrett Co. v. Bobal, 6540.
| Citation | 74 F.2d 406 |
| Decision Date | 08 January 1935 |
| Docket Number | No. 6540.,6540. |
| Parties | BARRETT CO. v. BOBAL. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
C. M. Horn, of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart, of Cleveland, Ohio, on the brief), for appellant.
Jesse Stephens and William Gordon, both of Cleveland, Ohio (Stephens, Verhunce & Stephens and William Gordon, all of Cleveland, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
Action by John Bobal, administrator of the estate of John Hurajt, against the Barrett Company, a New Jersey corporation, to recover damages for his death. Judgment for plaintiff. Defendant appealed and complains (1) of the denial of a directed verdict; (2) of error in the charge; and (3) of the exclusion of evidence.
Appellant was a manufacturer of Tarvia, a coal tar product designed for use upon highways. On February 23, 1932, it contracted with Cuyahoga county, Ohio, to furnish the county 50,000 gallons of its product. The contract was embodied in a bid by appellant and its acceptance for the county and provided that the Tarvia was to be "delivered and applied in pressure distributors * * *," to be furnished by appellant.
One of these distributors, herein called a tank, was delivered by appellant to the county in April or May, 1932, and from then until the accident, July 27, 1932, was in the possession and under the control of the county's road repair department. This tank was one of a number which had been built for appellant in 1917 and had been used for the heating and application of Tarvia more or less continuously from that date. It was built of ¼ inch steel plate, was cylindrical in shape, 8 feet 10 inches long, and 42 inches in diameter with heads of 5/16 inch openhearth, tank-steel plate. It was made to withstand inside pressure of from 240 to 300 pounds, was mounted on a chassis, and was conveyed from place to place by the county's motortruck.
As Tarvia was required, it was transported, while hot, to the job in a large metal tank and was forced therefrom into the distributor tank through a hose line. Thence it was applied to the surface of the highway by the county's employees by means of a spraying device attached to the rear end of the tank. On account of its low viscosity, it was necessary to maintain the Tarvia at a high degree of temperature and to force it through the spraying attachment with compressed air. Heat was applied through jets from a kerosene burner located underneath the front of the tank and air supplied through a hose connected with a pump stationed upon a nearby county truck.
The tank was not provided with either a thermometer or a level gauge, but in our view the lack of these devices is not controlling. Some time after the purchase of the tank, appellant supplied it with a safety or escape valve which was inserted through the steel at the top and near the front end. This valve was set to "pop off" at 15 pounds and its function, of course, was to relieve the inside of the tank of excessive pressure.
The tank had been in almost continuous service from the time appellant delivered it until the accident. The road repair work was in charge of two crews, alternating weekly, each under a foreman. On the morning of the accident one of these crews, under Foreman Moritz, was using the tank on the "River Road" at the foot of Morosky Hill, the grade of which was about 15 per cent. At 11:30 it was pulled up the hill by a county truck and left standing upon the road with its front end about 18 inches higher than its rear. It was then nearly empty and whatever remained of its contents flowed to the rear end. The crew stopped for lunch, and when resuming work at noon, one of the workmen lit the burner under the front end of the tank and it continued to burn until about 1:15. In the meantime the air compressor was operating at its registered pressure of 35 pounds. At 1:15, just as the operators in charge were about to commence spraying, the tank exploded with terrific force. The rear end was blown out, and struck and killed Hurajt, who was then at work upon the road nearby.
The tank was overturned and an inspection disclosed a reddish burned area, elliptical in shape, and about 18 to 20 inches in length and 8 to 10 inches in width upon that portion directly over the kerosene burner. The...
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