Fairfield v. Bichler
| Citation | 190 S.W. 32,195 Mo.App. 45 |
| Parties | ANNA B. FAIRFIELD, Respondent, v. NICHOLAS BICHLER, et al., Appellants |
| Decision Date | 27 November 1916 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. Thomas B. Allen, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Hogsett & Boyle and William E. Stringfellow for appellants.
Randolph & Randolph and F. D. Goud for Respondent.
Plaintiff is the widow of Ernest Fairfield who was an employee of Geis & Bichler, a partnership and proprietor of boiler and sheet iron works in the city of St. Joseph. He was killed in an explosion on the 20th of October, 1914. Geis was killed in the same explosion and Bicher was appointed administrator. The latter is a party defendant in this cause both as an individual and as such administrator. The action is for damages and is based on charges of negligence specified in the petition. The judgment was for the plaintiff.
It is alleged in the petition that a part of defendant's business was welding metals by the use of two gases (oxygen and acetylene) conveyed in two rubber hose from tanks, the hose uniting at the end and thereby fusing the gases, so that when ignited they made a blaze, or torch of intense heat and performing proper service when applied to the metal. It is alleged that defendants built a small one-story brick building about seventeen feet square with only one room, in which they installed two metal tanks. One of these tanks was the larger and acetylene was generated therein by "feeding" carbide into water. The other tank was filled with oxygen from some other place and brought to the building. These tanks were near each other in a corner of the room and the work bench, where the welding was done, stood about eight feet away. It is charged that both of these gases were powerful and dangerous explosives. Attached to the acetylene tank is what is called a "motor case" or "water bottle" said to contain ten quarts of water. The gas which has been generated in the tank itself, passes from such tank through this water bottle into the service pipe, thence by the hose to the point where it unites with the oxygen hose, blending therewith and when ignited becomes the welding torch as above stated. A back-fire from the torch is liable to follow the hose back to the acetylene tank which, if not protected would cause it to explode, but this water bottle is a protection against such an accident, as the fire could not pass through the water bottle, if properly filled, to the tank itself.
After stating that it was defendant's duty to furnish deceased with a safe place to work, the following acts of negligence are specified in the petition: First, they furnished deceased unusual, defective and unsafe gas. Second, that the tanks were defectively constructed and the material therein was defective. Third, that the acetylene tank was not provided "with a sufficient water bottle with water therein to prevent a back fire from the torch." Fourth, that the room was too small, was improperly arranged and ventilated. Fifth, that the tanks should have been put in a place entirely outside of the room or building where the welding was done, so as to have been isolated from the flame of the torch, or sparks from the metal.
It was shown by testimony given by experts that too much pressure could cause explosion of acetylene gas, and that it would explode in contact with fire, but oxygen would not. That the latter will explode by expansion caused by heat applied to the tank in which it is held.
One Shamrod was defendant's foreman, but deceased after some eight or ten days instruction by an expert paid by defendants, had handled the torch and controlled the apparatus for near four months. It seems that defendants had just started an oxygen gas plant near by and that one Frid, an expert, from such a plant at Kansas City, had been sent to defendants' plant to instruct or assist them in getting started. He testified that deceased came to the oxygen plant and asked him to come over that he was "having some trouble with the gases." Geis was there and they, with deceased, went over to see "what the trouble was." Deceased took hold of the torch and applied it to metal plate he was welding when the explosion occurred with terrific force. It killed deceased, Geis and a bystander, Frid being the only one in the room left alive and he was badly injured. He testified that he saw a flash and then came the explosion. It totally destroyed the building and both tanks were blown open or apart, the oxygen tank scattered in every direction, pieces were carried four hundred feet away. There was some evidence tending to show two explosions almost together--only far enough apart to distinguish a dull sound and then, immediately, the main and destructive one.
While it was said that the acetylene gas could be made to explode from too much pressure, we think the evidence, and reasonable inferences to be drawn therefrom, together with the circumstances, afford reasonable and probable ground to believe either that escaping gas came in contact with the torch, or that back fire passed along the hose back through the "water bottle" (insufficiently or improperly filled) to the acetylene tank. The explosion of the gas in the oxygen tank, which gas, as we have stated, will not explode from contact with fire, but will from expansion caused by extreme heat, is accounted for by experts by the heat of the exploding flash of the gas in the acetylene tank. The evidence showed this heat to have been 6,000 degrees.
There was evidence tending to show that proper care and prudence required that the gas tanks should not have been located in such proximity to the work bench where the welding torch was used, and that sparks occasionally fall from the metal, and that they should have been located in some proper structure outside of the welding room, or building. The jury may well have found that if that had been their location, either of the two things which did occur would not have occurred, viz, that there would not have been an explosion, or, if there had, it would not have killed deceased. These acts of commission and omission are a part of the negligence specified in plaintiff's petition.
Deceased was a young married man nineteen years and six months old. We think defendants' suggestions that he was an experienced man fully capable of handling the plant, and that he was in exclusive charge of it are not supported by the record. We have already seen that defendants had him instructed for about eight days, when other evidence showed that it should require a year of experience and teaching to fully qualify one for such position. He was being paid only about one-third what a capable and experienced man should receive. While it is true that deceased was in charge of the welding with the assistance of a helper, yet one Shamrod was the foreman over him. The foregoing considerations justify the trial court in overruling the demurrer to the evidence.
Defendants insist that if the master conducts his business in the manner customarily followed by experienced men in the same line of business it is conclusive against negligence. In support of this insistence we are cited to Coin v. Lounge Co., 222 Mo. 488, 121 S.W. 1; Chrismer v. Bell Tel. Co., 194 Mo. 189, 209, 92 S.W. 378; Brands v. St. Louis Car Co., 213 Mo. 698, 708, 112 S.W. 511, and many cases from other States.
Applying this rule to this case, defendants contend...
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