Cross v. MC Carlisle & Co., 6719.

• Decision Date: 21 November 1966
• Docket Number: No. 6719.,6719.
• Citation: 368 F.2d 947
• Parties: Robert W. CROSS, Plaintiff, Appellant, v. M. C. CARLISLE & CO., Inc., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

368 F.2d 947 (1966)

Robert W. CROSS, Plaintiff, Appellant, v. M. C. CARLISLE & CO., Inc., Defendant, Appellee.

No. 6719.

United States Court of Appeals First Circuit.

November 21, 1966.

COPYRIGHT MATERIAL OMITTED

Stephen A. Hopkins, Boston, Mass., with whom Robert P. Booth, Manchester, N. H., and Sherburne, Powers & Needham, Boston, Mass., were on brief, for appellant.

John M. Hall, Boston, Mass., with whom Weld S. Henshaw, Thomas E. Cargill, Jr., and Choate, Hall & Stewart, Boston, Mass., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

OPINION OF THE COURT.

McENTEE, Circuit Judge.

This is a diversity suit for injuries sustained by plaintiff as the result of an explosion that occurred on June 22, 1962, in the sander dust disposal system at the Plywood Products plant in North Stratford, New Hampshire.¹ The defendant, M. C. Carlisle & Co., Inc. is a Boston sheet metal work firm that deals especially in dust collection systems. Plaintiff, a Plywood employee, charges that this explosion and his consequent injuries were caused by Carlisle's negligence² in designing, manufacturing and installing the disposal system in which the explosion occurred. The case was tried to a judge and jury. After plaintiff had put in his case on the issue of liability, the court directed a verdict for the defendant and entered judgment dismissing the suit.

Plaintiff contends that on the evidence presented, he was entitled to go to the jury on this issue — hence the trial court erred in directing the verdict. This is the only question raised in his appeal.

The operation of the dust disposal system in question revolves principally around a blower (enclosed fan), a separator and a downspout or tail pipe that goes into a furnace where the dust is burned.³ Two other devices should be mentioned. At the point where the feeding duct enters the separator there is a weighted damper that is supposed to close and seal off the feeding duct when the blower is not in operation. On the tail pipe, about ten feet up from the floor, there is a ball and socket joint that enables the pipe to be swung away from the fire holes, a distance of three or four feet.⁴

First, let us review the evidence with reference to the work Carlisle did on this system. This firm became involved in Plywood's wood waste problems in 1955 when it was called in to work on the system in which this explosion later occurred.⁵ Almost every year since then defendant has been involved in work on wood disposal systems at the Plywood plant. An employee who has worked for Plywood since 1932 testified that the first job Carlisle had at the plant was to take out the Bannister blower system and replace it with a larger system. He said that from then on this firm did all the blower work. This included the installation of the tail pipes that were in the plant when this accident happened in 1962 as well as the blowers and the duct work to take care of the sander dust.

The maintenance foreman, who has also been employed at the plant for many years, said that Carlisle installed the balance of the sander system of which the Bannister blower was a part; that this firm also installed all the tail pipes that were in the boiler room in 1962; that it put in the first sanding equipment in the plant; did all the duct work in the woodworking system from 1955 on and replaced the separator after this explosion. He added that Lavin, the president of Carlisle, and his son came to the plant from time to time and gave advice on duct work.

A third Plywood employee testified that he was present when Carlisle installed the tail pipes that were in the system in 1962 when plaintiff got hurt. Also, that Carlisle's men repaired the separator after an explosion in March 1962.

Lavin testified that the work of designing dust collection systems in the Carlisle firm was done by him or under his supervision. He denied that Carlisle had designed the sander system in question but admitted that in his deposition, taken prior to trial, he stated that Plywood had told him what they wanted with reference to this particular system; that on that information he prepared plans and recommendations of what should be done and that he designed the system. At the trial he tried to explain this by saying that in 1955 Carlisle worked on two systems at the plant; that he designed one of them in its entirety except for the tail pipe but that on the system in question he designed the suction side only and not the blower, the separator or the tail pipe. Although he admitted that Carlisle supplied and installed all the tail pipes in use at the plant at the time plaintiff was injured, he stated that these tail pipes were designed and requested by Plywood. Also, Lavin confirmed the testimony given in his deposition that his firm manufactured and installed the parts that went into the sander system in question; that he recommended the installation of the ball and socket joint in the tail pipe and also the installation of the fire damper near the entrance to the separator.

At the trial Lavin also testified that Carlisle did most of the duct work and the wood disposal work at the plant between 1955 and 1962. He further stated that most of this was replacement work.

Carlisle's employee Kamilewicz, who spent considerable time at the Plywood plant,⁶ testified that his company's first job at Plywood was putting in "the sanding system — sanding dust collector" in 1955 and that it was a full installation.⁷ He indicated that in 1955 Carlisle replaced the separator and the duct work running from the separator to the fire box but only to the roof line.⁸ He also testified that the entire system that is in the plant now is what Carlisle put in in 1955, the only exception being that Plywood has more sanders there now than it had at that time.

At the time this explosion occurred the sander dust system had been shut down for at least three days for repairs. The Dutch ovens were in operation and the tail pipe on this system had been swung away from the fire hole. Plaintiff and two other members of the maintenance crew were on the platform in the boiler room working on the blower.⁹ Explosions in this plant were not uncommon. Over the years there had been a number of small ones in the separators — one about every six months.¹⁰ As recently as March 1962 there was an explosion in this system that damaged the separator and the weighted damper.¹¹ Also it should be noted that over the years numerous small fires were burning on the boiler room floor "most all the time" and were allowed to burn themselves out.¹²

The specific negligence alleged is that in designing, manufacturing and installing the tail pipe, Carlisle failed to equip this pipe with proper safety devices.¹³ Furthermore, that Carlisle did not use reasonable care in designing and installing this system because the fire damper installed at the entrance of the feeding duct into the separator was not sufficient to prevent flames from travelling to places where, as here, workmen were likely to be located.

Plaintiff's experts testified that when the system was shut down and the tail pipe was out of the fire hole, a draft was created in the tail pipe; that this draft sucked burning embers from the boiler room up through the tail pipe and into the separator where they ignited a highly combustible mixture of air and fine dust that had collected there — and that this caused the explosion. One of plaintiff's experts also testified that the flames from the explosion flashed through the weighted damper (fire damper) at the entrance to the separator and back through the eye of the blower where plaintiff was working at the time. He further stated that blowing the dust directly into the Dutch oven, as was done here, is "absolutely wrong"; that "it is standard practice all over the world" to have a storage tank¹⁴ between the separator and the furnace. This expert recommended that in the existing system there should be two check valves on the tail pipe, one near the bottom of the separator and the other down from the ball and socket joint. He said these valves would prevent sparks from going up the tail pipe¹⁵ and would have prevented this accident.

This expert also testified that the weighted damper at the entrance to the separator was not sufficient to prevent the flames from the explosion from travelling back through the system and out the eye of the blower because it was not tight. There was evidence that Lavin recommended the use of this damper as a safety device. In the opinion of plaintiff's expert a rotary valve instead of the fire damper at the point where the feeding duct enters the separator would have prevented the accident because "it's more accurate and shuts off better." He also testified that such valves are in common use.

There is no dispute that in determining the question of liability in this case the substantive law of New Hampshire must be applied. In Russell v. Arthur Whitcomb, Inc., 100 N.H. 171, 121 A.2d 781 (1956), the New Hampshire Supreme Court adopted the view:

"that independent building and construction contractors should be held to a general standard of reasonable care for the protection of third parties who may be foreseeably endangered by the contractor\'s negligence even after acceptance of the work. This rule is subject to the following qualification: `* * * The employer\'s failure to discover the defect will not relieve the contractor of liability; but * * * if he discovers the danger, or it is obvious to him, his responsibility supersedes that of the contractor.\' * * *"

This was a case where a landowner sued a road contractor who constructed a sewer line for the city. Plaintiff alleged that in doing so defendant negligently failed to refill an excavation which he made within a few feet of plaintiff's property which resulted in damage to his building. The New Hampshire Supreme Court said that in the absence of evidence...