Reynolds v. Natural Gas Equipment, Industrial Indem. Co., Intervener

• Decision Date: 20 September 1960
• Parties: William R. REYNOLDS, Plaintiff and Appellant, v. NATURAL GAS EQUIPMENT and the Anthony Company, Defendants and Respondents, Industrial Indemnity Company, Plaintiff in Intervention and Appellant. 1 Civ. 18422.
• Court: California Court of Appeals Court of Appeals

Page 879

7 Cal.Rptr. 879

184 Cal.App.2d 724

William R. REYNOLDS, Plaintiff and Appellant, v. NATURAL GAS EQUIPMENT and the Anthony Company, Defendants and Respondents, Industrial Indemnity Company, Plaintiff in Intervention and Appellant.

1 Civ. 18422.

District Court of Appeal, First District, Division 2, California.

Sept. 20, 1960.

Rehearing Denied Oct. 20, 1960.

Hearing Denied Nov. 16, 1960.

C. Ray Robinson, Charles E. Goff, Merced, for plaintiff and appellant.

Connolly & Farbstein, San Francisco, for Inc. Indemnity Co., plaintiff in intervention the appellant.

Ropers, Majeski & Kane, Redwood City, for respondent Natural Gas Equipment, Inc Barfield & Barfield, San Francisco, for respondent The Anthony Co.

GOOD, Justice pro tem.

Plaintiff and plaintiff in intervention appeal from a judgment of nonsuit in an action for personal injuries substained at plaintiff's place of employment when an explosion occurred in the immediate area of a gas burner that had been manufactured by defendant Anthony Company and sold and installed by defendant Natural Gas Equipment, Inc. The two companies will be referred to as Anthony and Natural Gas. Plaintiff was employed as a fireman by Marks Materials Co., which was engaged in the production and sale of a black-top mix used in road paving. The burner was used in connection with a rotary drier to dry sand and gravels used in the mix. With the exception of the occasional intervention of the plant foreman, plaintiff was the only person who operated the burner or drier. Until four or five weeks before the explosion, the drying had been done with an oil burning unit. After installation of the gas unit, the burner involved produced the required silver blue flame and appears to have operated satisfactorily except that the quantity of aggregates dried had to be reduced somewhat. On the day of the accident, the burner was shut off at noon and re-lit about one-half hour later. It had been 'working fine' during the morning. Shortly after re-lighting it, plaintiff noticed that the theremometer indicated a drop in the temperature of the drier. He checked the gas and air valves and gauges for proper pressures and on checking inside the drier noticed that instead of being blue, the flame was a reddish-orange color. Within minutes there was an explosion enveloping plaintiff in flame 10 to 12 feet high and 20 to 30 feet in diameter.

Plans and specifications for conversion from oil to gas were prepared by Natural Gas and the burner unit specified thereon was furnished by Anthony. The drier is a rotating brick-lined kiln 22 feet long with an inside diameter of about 5 feet into which the flame is blown from the separately installed burner. Schematic diagram and manufacturer's description of the burner as contained in Anthony's Data Sheet admitted in evidence herein. It may be noted that the burner actually installed appears to have been not exactly the same as that shown on the exhibit but design and operating principles insofar as gas is concerned were the same. There was testimony that natural gas under three to five pounds pressure and air under one to three pounds pressure were separately introduced into a mixing chamber and forced out of the orifice of the air adjusting cap, ignited by a pilot light and the flame then blown into the rotating kiln. The air cap was 12 inches in diameter and threaded to screw onto the burner head. The threads were coarse and free-running to permit easy adjustment of the space between the gas nozzle and the cap's face, thus increasing or decreasing the air space in the mixing chamber. No lock or set screws were provided for the cap except when specified by the purchaser. A vice-president of Anthony testified that the unit was manufactured to provide a minimum of 1/4 inch air space with the cap screwed tight but that the tolerance was variable and it was conceivable that the space could be reduced to 1/8 inch; that because of the coarseness of threads it would take a great deal of force to further close the space by stripping the threads; that the gas nozzle and air deflector were also threaded and could be moved forward toward the air adjusting cap but that set screws fixed its position; that the 1/4 inch minimum space would not provide a satisfactory operation but that it was the practice to assemble the unit for shipping with the air cap screwed tight because the space between cap and nozzle had to be adjusted to suit each particular job and that once adjusted for proper burning it should not be 'monkeyed with;' that if the 1/4 inch minimum space was entirely closed it would be reasonable to assume that gas at the greater pressure could be forced back into the air line; and, also, that he did not know what actually caused the explosion.

There was also evidence that before installing the burner Natural Gas adjusted the air cap and tested the flame; that this was the only adjustment made by them; that after installation, their representative was present when the flame was tested but not when it was put into operation for production; that neither plaintiff nor the plant foreman nor anyone else to their knowledge made any adjustments of the air cap or any other element of the burner; that the combustion chamber came factory packed and had not been changed; that experimentation for heat capacity was limited to changing quantities of sand and gravel introduced into the kiln. While the plant foreman said he welded one joint on the main line and had completely relaid the pilot line to the boiler, it appears that these were routine operations and had nothing to do with the burner itself. The entire installation was inspected by an official of either the county or state before commencing its use for production. Plaintiff also testified that though Natural Gas was to have had a man there during the first three days of production to show him how to operate it, this was not done. The several adjustments were never described to him and he received only operating instructions from the plant foreman but had had some five years practical experience with both oil and gas burners. By deposition partially read into evidence, it appears that after the explosion Natural Gas made an examination of the installation to determine the circumstances existing and that it found nothing wrong. There was also evidence that neither the burner or its cap was subjected to any accidental or unusual force during installation or thereafter but after the explosion the air cap was closed so tightly it had to be hammered off.

The issues raised are (a) whether or not the evidence was sufficient to support a finding of negligence against either or both defendants under res ipsa loquitur; (b) whether the evidence without the application of res ipsa would support a finding of negligence because of unsafe or defective design or by reason of failure to instruct or caution appellant or his employer in the safety factors involved in the operation of the burner and its various adjustments; and (c) whether or not it was prejudicial error to exclude expert testimony on the question of accepted engineering standards of design and safety requirements in the San Francisco bay area. These issues will be discussed in the order stated.

The adversaries have correctly cited the principles of law governing the granting of nonsuit and appellate review thereof, wherein all reasonable intendments must be indulged in favor of reversing rather than affirming the trial court. Turner v. Ralph M. Parsons Co., 1953, 117 Cal.App.2d 109, 254 P.2d 970; Raber v. Tumin, 1951, 36 Cal.2d 651, 226 P.2d 574. The judgment can be supported only if giving plaintiff's evidence fully prima facie value and indulging in every reasonable inference that can be drawn therefrom and with all conflicts resolved in plaintiff's favor, the result is a determination that there is no substantial evidence to support a judgment for the plaintiff. Neither the appellate court nor the lower court may weigh the evidence or consider the credibility of the witnesses. Lasry v. Lederman, 147 Cal.App.2d 480, 305 P.2d 663. The plaintiff here may rely on that portion of testimony given under Code of Civil Procedure, section 2055, which is favorable to him and disregard the unfavorable portions. Anthony v. Hobbie, 1945, 25 Cal.2d 814, 155 P.2d 826. However, the evidence produced by plaintiff must support a logical inference in his favor, sufficient to raise more than a mere conjecture or surmise that a fact is as alleged in order to warrant submission of the question to a jury (Alves v. Lopez, 159 Cal.App.2d 705, 324 P.2d 652), and a court should not put itself in the incongruous position of destroying logic to hold a case in court. MacDonald v. Jackson, 1953, 117 Cal.App.2d 598, 256 P.2d 591. It is in the light of these principles that the evidence must be reviewed.

Was res ipsa loquitur applicable? In our opinion there was prima facie proof sufficient to require submission of the question to the jury. The doctrine has three factual conditions (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Ybarra v. Spangard, 1944, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Baker v. B. F. Goodrich Co., 1953, 115 Cal.App.2d 221, 252 P.2d 24.

It is well settled that the first condition is satisfied if there is a basis of experience, either common to the community or brought out in evidence, from which it may reasonably be concluded that the accident is of a kind which does not ordinarily occur unless someone has been negligent. Hercules Powder Co. v. Automatic etc. Co., 1957, 151 Cal.App.2d 387, 311 P.2d 907; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; Hinds v. Wheadon, 19 Cal.2d 458, ...