Miller v. Walsh Fire Clay Products Co.

• Decision Date: 02 March 1926
• Docket Number: No. 19130.,19130.
• Citation: 282 S.W. 141
• Parties: MILLER v. WALSH FIRE CLAY PRODUCTS CO.
• Court: Missouri Court of Appeals

282 S.W. 141

MILLER v. WALSH FIRE CLAY PRODUCTS CO.

No. 19130.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Rehearing Denied April 6, 1926.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

Action by Floyd Miller against the Walsh Fire Clay Products Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rodgers & Buffington, of Mexico, Mo., for appellant.

Gatson & Price, of Vandalia, and Frank Hollingsworth, of Mexico, Mo., for respondent.

SUTTON, C.

This is an action for personal injuries. The petition alleges that defendant is now, and was at all the times hereinafter mentioned, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, engaged in the manufacture of fire brick and other fire clay products at Vandalia, Audrain county, Mo.; that in the process of manufacturing said fire brick the defendant has, and had at all the times herein mentioned, installed and did maintain and operate a number of gas producers for the purpose of manufacturing gas with which to burn or cure said fire brick and other fire clay products; that the gas so manufactured in said gas producers is a deadly and dangerous poison when inhaled or received into the human body, and has a highly deleterious effect upon the human system when inhaled, of which said deadly and dangerous properties of said gas and its effects upon the human body the defendant at all times herein mentioned well knew, or by the exercise of ordinary care should have known; that said gas producers consist of a round steel or iron shell interlined with fire brick, somewhat similar in shape to the inverted frustrum of a cone, and are about 8 feet in width at the top, and about 8 feet in width at the bottom, and about 10 feet in length from top to bottom; that underneath and separate from said cone-shaped shell an ash pan about 8 feet in diameter and about 2 feet deep is situated, through the center of which said ash pan passes a hollow pipe at the top of which is fastened a cone-shaped cap or hood commonly called, and hereafter referred to, as a blast hood, and that through this said pipe steam-laden air is blown, said hollow pipe having its footing on a concrete base and standing in an upright position, extending upward into the above described cone-shaped shell about three feet, said hollow pipe being about 12 inches in diameter; that said cone-shaped shell is covered by a cast iron top, through which coal is fed through an automatic feeding device located above said cone-shaped shell; that a large revolving poker, automatically operated, is inserted through a hole about 2 feet in diameter in the top covering of said producers; that said producers are supported by upright pillars, which support a track upon which said producers revolve when in the operation of the manufacture of said poisonous and noxious gas; that the coal fed into said gas producers in the manner aforesaid is heated and burned therein by fire, the said fire being forced, blown, or sucked through the coal in said cone-shaped shell by steam-laden air inducted into and through said fire by a hollow iron pipe that stands upright by the side of said gas producers from about an even height of the top thereof and extending down to and entering said shell from below, the steamladen air passing through said hollow pipe and into and through said burning coal by virtue of pressure or suction of an apparatus known as a turbo-blower; that said gas producers maintained and operated by defendant in manufacturing said noxious and poisonous gas are arranged in pairs or groups, the gas from which said pairs or groups of producers, as manufactured, passes out of each of said producers through a large elbow, or gooseneck hollow pipe, and is stored or restrained in large tanks that stand upright near the side of said gas producers and extend above the top of said gas producers a distance of 15 or 20 feet, and below the tops of said gas producers a distance of 5 or 6 feet; that there are a large number of said large steel or iron tanks, and they are connected one with another by means of hollow pipes 2 or 3 feet in diameter; that the said gas manufactured in the gas producers aforesaid passes thence into these tanks as aforesaid, and is thence forced in some way unknown to this plaintiff into a large pipe or conduit and there distributed into numerous firing kilns, where said gas is used in the burning of said brick; that he is unable to describe or explain more fully how said poisonous gas is produced in said gas producers; and that he is unable to explain how said poisonous gas is conducted from said gas producers into said tanks, or how or in what manner it is restrained therein further than above detailed, or what, if any, means or methods are provided or in use to prevent said gas from flowing back into said gas producers when not in use; that all of said machinery connected with said gas producers and the said storage tanks, conduits, and containers are extensively involved and complicated, and that the mode and manner of operating the said gas producers, storage tanks, conduits, and containers and appliances connected therewith and the control and restraint of said poisonous gas is wholly unknown to plaintiff; and that he has no skill in or knowledge of the operation and working thereof, but that all of said mamhinery and appliances in use in the production of said gas and the storage tanks, conduits, and containers used in storing, transporting, and restraining the same were fully and completely under the control and operation of defendant; and that the defendant then had and now has within its personal knowledge all the works and working of said machinery and appliances, storage tanks, conduits, and containers used in connection with said gas producers and the manner and mode of storing, transporting, and restraining said gas, and well knew that said gas was highly dangerous, poisonous, and noxious if permitted to be unrestrained where human beings could or might come in contact therewith and receive or inhale the same into their bodies; that it is and was"the duty of the defendant, its agents, and employees in charge of said machinery used in the production thereof to have and exercise a degree of care in the restraint, manufacture, and handling of said gas commensurate with the danger reasonably to be apprehended from its escape; that on or prior to the 28th day of March, 1923, he was in the employ of defendant, working under the orders and directions of defendant's master mechanic, but that his duties were merely those of repairing broken pieces of appliances, equipment, and tools used in connection with said defendant's fire clay products enterprise, and he had no scientific or practical knowledge of the machinery there used by defendant in its said enterprise, and especially the machinery, storage tanks, conduits, and containers used in the production and restraint of said poisonous gas; that on said 28th day of March, 1923, he was ordered by said master mechanic to enter one of said gas producers and remove the cone-shaped cap or hood, designated as a blast hood, therefrom, and was given the assurance of said master mechanic that said gas producer was free of gas, and that no gas could enter said gas producer; that he confidently relied upon said assurance so given him; and that in order to remove said blast hood it was necessary for plaintiff to remove the above described revolving poker in order that he might enter through the said poker hole into the gas producer as above described; that with the aid of a coworker he removed said poker with a chain block, in the manner directed by said master mechanic, and entered said gas producer by means of a ladder placed through the hole from which said poker was removed; that when he entered said gas producer no trace of any gas was evident, and he proceeded to perform his work of removing the blast hood in the manner directed by said master mechanic; that he had been at work for about two hours when suddenly, without warning, and through no fault or carelessness of plaintiff in any way or manner, the said chamber of the gas producer became filled with said poisonous and noxious gas; that he was overcome by said poisonous and noxious gas so quickly that it was impossible for him to get out of the gas producer through his own efforts, and he was finally rescued therefrom by workmen after having been completely overcome, and after having inhaled into his body great quantities of said gas; that said noxious and poisonous gas was permitted to enter said gas producer by and through defendant's negligence and carelessness in failing to properly restrain said gas; and that as a direct result of the negligence and carelessness of defendant in permitting said gas to suddenly, unexpectedly, and without warning escape into said gas producer in such an extremely unusual manner, and through no fault or carelessness of plaintiff, he has sustained serious and permanent injuries; that by reason of his injuries his health has been seriously impaired and affected; that his ability to work find his earning capacity have been greatly impaired; that he has suffered and will in the future suffer great pain, and anguish of both body and mind; that he has lost, and will in the future lose, much time from his work; and that he has necessarily incurred and will hereafter necessarily incur much expense for medical care, treatment, and attention.

The cause was tried to a jury, there was a verdict and judgment for plaintiff for the sum of $4,000, and defendant appeals.

The defendant manufactured fire brick at its plant, and in the process of making fire brick gas was used as fuel with which the bricks were burned. This gas, which in appearance is a yellow colored smoke, was made at the plant from the burning of coal, and is known as producer gas, and contains from 21 to 37 per cent. carbon...