Delano Mill Co. v. Osgood

• Decision Date: 13 November 1917
• Docket Number: 1300.
• Citation: 246 F. 273
• Parties: DELANO MILL CO. v. OSGOOD.
• Court: U.S. Court of Appeals — First Circuit

246 F. 273

DELANO MILL CO. v. OSGOOD.

No. 1300.

United States Court of Appeals, First Circuit.

November 13, 1917

William H. Gulliver and William C. Eaton, both of Portland, Me., for plaintiff in error.

Benjamin Thompson, of Portland, Me., for defendant in error.

Before DODGE and BINGHAM, Circuit Judges, and ALDRICH, District Judge.

BINGHAM Circuit Judge.

This is an action for personal injuries suffered by the plaintiff's intestate on the 9th of July, 1915, while attempting to put out a fire in the dust room on the roof of the defendant's mill. There was a trial by jury and a verdict for the plaintiff. The case is here on the defendant's bill of exceptions, and the errors assigned are to the court's denial of the defendant's motion for a directed verdict, to the refusal to give certain requested instructions, to the admission of evidence and to permitting certain witnesses to testify as experts.

The declaration contains two counts. In the first count the plaintiff alleges that the defendant, on the 9th day of July 1915, was and for a long time prior thereto had been engaged in carrying on the business of milling lumber and manufacturing therefrom various kinds of cabinet work at its mill, situated at the corner of Fore and Cross streets, in Portland; that in said mill it operated certain finishing machines, which created a very fine dust and small particles of wood, which were removed from the machine by a blower system to a separator located above the dust room; that the dust room was built on the roof of the mill, and the dust and fine particles of wood descended from the separator into it; that the entrance to this room was by a ladder leading from the floor of the finishing room through an opening in the roof of the mill, to a platform inclosed in a vestibule, and thence through a door leading from the platform to the dust room; that on said 9th day of July large quantities of dust and fine particles of wood had accumulated in the dust room and were liable to spontaneous combustion; that when the mill was in operation the air in the dust room was so filled with dust that in the event of fire therein, due to spontaneous combustion or otherwise, an explosion of great violence would occur the instant air came in contact with such fire and dust; that the defendant had fire extinguishers located in different parts of the mill that it was the duty of the workmen employed in the finishing room and other parts of the mill to use the fire extinguishers in extinguishing any fire that might be discovered in the mill; that on the 9th day of July the plaintiff's intestate was in the employ of the defendant, engaged in operating a finishing machine in the finishing room; that it was the duty of the defendant to provide the plaintiff's intestate with a safe and proper place in which to perform his aforesaid duties, but that it carelessly and negligently allowed and permitted the place in which he was liable to be required to be in the performance of his duties to become unsafe, in that it allowed said dust room to become partly filled with said fine dust, with access thereto over the ladder and through the door into said room, so that, in the event of fire therein, a violent explosion would occur as soon as the door was opened; that the dangerous and unsafe condition of the room and the liability of explosion were well known to the defendant, or would have been by the exercise of reasonable care; that on the afternoon of said 9th of July, while the plaintiff's intestate was at work in the finishing room, a fire occurred in the dust room; that the plaintiff's intestate, without knowledge of the explosive character of the dust or the dangers to which he would be exposed by going into said room in the discharge of his said duties, seized a fire extinguisher and went up the ladder and into the dust room to extinguish the fire; that the instant the air through the door came in contact with the air and dust in the room an explosion occurred, and the flame enveloped the plaintiff's intestate as he attempted to escape down the ladder, severely burning him, from the effects of which he died on the 15th day of July, 1915.

The second count is like the first with the single exception that, instead of alleging that the defendant was negligent in failing to provide the plaintiff's intestate with a safe place in which to perform his duties, charged that it was the duty of the defendant to instruct him as to the dangerous and explosive character of the dust which it had permitted to be gathered in the dust room, and especially to warn him of the dangers to which he would be exposed in the event of fire breaking out in the dust room and his going there to extinguish the same in...