Byland v. E. I. Du Pont De Nemours Powder Company

• Decision Date: 14 November 1914
• Docket Number: 18,884
• Citation: 144 P. 251,93 Kan. 288
• Parties: TOBIAS BYLAND, Appellant, v. E. I. DU PONT DE NEMOURS POWDER COMPANY, Appellee
• Court: Kansas Supreme Court

144 P. 251

93 Kan. 288

TOBIAS BYLAND, Appellant, v. E. I. DU PONT DE NEMOURS POWDER COMPANY, Appellee

No. 18,884

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Explosion of Powder Mill--No Proof of Negligence--Demurrer to Evidence Rightly Sustained. In an action to recover for injuries caused by the explosion of defendant's powder mill there was no substantial evidence, direct or circumstantial, fairly tending to prove what actually caused the explosion. Held, following Brown v. Railroad Co., 81 Kan. 701, 106 P. 1001: "It is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party;" and that the court rightly sustained a demurrer to the evidence.

2. SAME--Negligence as Alleged Must be Proven. Where in an action founded upon negligence the plaintiff alleges specifically the negligent acts of the defendant upon which he relies to recover, he must prove the negligence alleged, and will not be allowed to make a prima facie case relying upon the doctrine of res ipsa loquitur.

3. PERSONAL INJURIES--Under the Facts Proven the Provisions of the Factory Act Do Not Apply. Plaintiff was injured by the explosion of defendant's powder mill, and alleged, among other acts of negligence, failure of the defendant to provide some appliance to prevent metallic thumb-nuts from falling through a defective screen, and alleged that by reason of the absence of such an appliance metallic thumb-nuts found their way into the inflammable mixture and caused the explosion. At the time the explosion occurred the plaintiff was not at work near the machine, but stood outside the building where it was located and fifty feet therefrom. He was not injured by the thumb-nuts falling upon him nor by coming in contact with the machine. Held, that the provisions of the factory act (Gen. Stat. 1909, § 4679) requiring machinery to be properly and safely guarded for the purpose of preventing or avoiding injury to employees in factories has no application, and that plaintiff could not maintain an action under the statute.

Charles Stephens, C. A. McNeill, and E. V. McNeill, all of Columbus, for the appellant.

A. H. Skidmore, and S. L. Walker, both of Columbus, for the appellee.

OPINION

PORTER, J.

The action in the district court was to recover for injuries which the plaintiff sustained in an explosion at the powder mills of the defendant company where he was employed. The court sustained a demurrer to his evidence and rendered judgment against him, from which he appeals.

In a voluminous petition plaintiff set out the manner in which the defendant operated its powder mills, and alleged that the explosive materials used in making the powder were first mixed in four wheel mills; that the mixture was then conveyed in bulk by means of push cars and cars drawn by horses on grit-covered tramways running to press mills, where it was pressed into cakes about one inch thick; that these cakes were then conveyed in a similar manner over other tracks to what is known as the "corning" mills, where the cakes were crushed through four sets of rolls, and from the last set of rolls carried by an elevator to a revolving screen; that the smaller particles or screenings constituted what is commonly known as "back dirt," which was carried back to the press mills, again mixed with other unpressed material, and finally returned to the corning mills and reground through the rolls for the purpose of having all grains of powder substantially the same size; that the revolving screen in the north corning mill, where the explosion occurred, was made up of sections of screens, and that some of the buttons or bolts which fastened the screens, and also metallic butterfly thumb-nuts two or three inches long, attached to the wooden bolts, were loose, and would sometimes drop into the back dirt, and in the regular routine be carried to the press mills, pressed into cakes, and carried again to the north corning mill, where they would be fed into the rolls, thereby causing a friction and creating sufficient heat and sparks to ignite the dangerous explosives then being crushed.

The accident occurred on March 30, 1912, and the petition alleged that on the afternoon of the day before, when the mills had stopped for the day, one Durkee, foreman and inspector, and Robert Carson, the repair man of the defendant, changed a section of screens in the north corning mill, and that some of the butterfly thumb-nuts were loose, and through the carelessness and negligence of the carpenter and repair man, dropped into the back dirt and were afterwards repressed with other screenings and returned to the north corning mill, where they caught and hung in the rolls and caused the explosion which completely destroyed the north corning mill, and seriously and permanently injured the plaintiff. The petition further alleged a failure to provide a safe place for plaintiff to work, in that defendant carelessly and negligently managed and operated its plant in several particulars; that it failed to employ suitable, competent and careful agents and servants to look after the details in the construction, management and inspection, and in the repair of the tramways, equipments and grounds in the handling of explosive materials; that it well knew that particles of grit became extremely dangerous when any portion of the same became mixed with the raw materials; and that on the morning of March 30, and before the explosion, at least one of the cakes of powder which were being fed into the rolls of the north corning mill contained butterfly thumb-nuts, and all of the cakes contained many particles of cinders, sulphur, sometimes called sulphur rock, iron, flint, sand and other grit, and also nails and metallic substances, the exact size and descriptions of any of which the plaintiff alleged he was unable to state; that these foreign substances created heat and sparks in the rolls and caused the explosion. The petition further charged the defendant with negligence in failing to equip the press mills with necessary screens and appliances to prevent foreign substances and grit from going into the machinery with the inflammable and explosive material.

There was a failure of proof respecting the allegations of negligence on the part of the foreman and the carpenter. No evidence was offered to show that they or any other person had made any change in the screens on the day before the accident. There was no proof that the explosion was caused by a thumb-nut being in between the rolls and producing friction, except proof of circumstances tending to show the possibility of such a thing. Counsel appear unwilling to rest their case alone upon the claim that the evidence showed that the cause of the explosion was that the foreman and the repair man changed the sections of screens on the revolving reel on the day before the accident, and in doing so carelessly failed to fasten securely some of the butterfly thumb-nuts, and that some of the thumb-nuts were too loose and by reason thereof one of them dropped off and found its way through the back dirt to the press mills and was fed back to the corning mill, caught in the rolls and produced a spark, where it ignited the powder. On the contrary, it is urged that the explosion may have been caused by any one or more of the acts of negligence alleged in the petition; the failure to provide screens at the press mill; failure to require the men to change their shoes before coming into the room where the explosion occurred; failure properly to inspect the machinery; failure to enforce proper rules; failure to tack a wire screen over the mouth of the hopper in the corning mill; failure to require the mules and horses to walk upon the narrow path on the trams, and the...