
    John Sticht, Respondent, v. Buffalo Cereal Company, Appellant.
    Fourth Department,
    December 28, 1906.
    Master and servant — injury from dust explosion in mill—weight of evidence as to safety of machinery — damages — erroneous submission of question of negligence Which was not proximate cause of accident to increase damages.
    In an action by an employee in a cereal mill to recover for personal injuries received from a dust explosion in a bin near which he was working it appeared that the explosion was caused by the ignition Of the dust in the bin by sparks . from the attrition mills on the floor below caused by the presence of some metallic substance in the cereal which passed between the rapidly revolving • iron disks of the mills. ■ The plaintiff contended that the defendant was negligent in failing to provide a sieve in addition to the magnetic separator, which was being used to separate foreign substances from the cereal. Two experts called by the plaintiff admitted that they were inexperienced in the operation of attrition mills arid that they knew of no such mill in which a sieve was used in connection with a magnetic separator. Four experts for the defendant, who were experienced in the construction and operation of attrition mills, testified that the magnetic separator used by the defendant was safe and proper and that no additional machinery was required.
    
      Held, that the preponderance of evidence was against the plaintiff’s contention and it was error to submit the question to the jury.
    The plaintiff further contended that the failure of the defendant to "use reasonable care to clean the bins and prevent the accumulation of dust on the sides increased the danger of the explosion. ' It appeared that the bins'had not been" cleaned for over a week. The plaintiff’s experts testified that the explosion was caused by the ignition ofthe dust in the air which they admitted would be present whenever the mill was in operation, even if the bin had been cleaned within an hour.- It appeared that the injury was caused by a sudden flash.
    
      Held, that it was error for the court to charge,that if the plaintiff was otherwise entitled to recover, the defendant was liable for any increased damages caused by the omission to clean out the dust in the bin. Such increase in damages would be extremely speculative.
    Spring and Kruse, JJ., dissented, with opinion.
    Appeal by the defendant, the Buffalo Cereal Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 14th day of February, 1906, upon the verdict of a jury for $1,000, and also . from an order entered in said clerk’s office on the 14th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Clarence MacGregor, for the appellant.
    
      Hamilton Ward, for the respondent.
   Nash, J.:

The plaintiff sustained injuries caused by a dust explosion in the defendant’s mill.

The defendant was engaged in manufacturing cereals and grind-, ing oat hulls, the covering of the berry of the oat, a by-product, mixed with other grains for feed; some of the oat hulls were produced from oats ground in the mill, and some were purchased by the defendant and brought in car lots from outside points.

In the process of manufacture the whole oats were received in an elevator and passed over a screen to an elevator bin, and from the elevator bin drawp to the cleaning department, where they go through eleven machines designed to clean the oats from all impurities; they then go to the dry kiln, where they are thoroughly dried ; then they pass over the lmller stones placed at such a distance apart as not to crush the oat but remove the hulls; the hulls are then separated from the groats or berry of the oat by passing over a fine sieve which removes the fine dust; then they pass into a machine known as the oat-hull separator, and by means of air suction, the oat hulls are drawn away from the heavier groats; the oat hulls pass through a conveyor to a bin in the elevator; from the bin they are drawn to the third floor of the feed mill; then pass down to the second floor where they pass over a magnetic separator, a machine designed to remove all metals which by chance should be in the oat hulls; then they pass to the first floor into the attrition mill where they are ground into a fine substance ; then to the cellar and are then elevated to the top floor and flow into a hopper bin from the top and pass through the bin to sacks according to the will of the packer at the bottom of the hopper on the second floor. The oat hulls which came from the outside were also subjected to a cleaning process. Upon being received from the car, they were screened through a grater which consisted of rods with spaces an inch apart which was designed to remove all coarse foreign substances and then conveyed to the bin where the oat hulls coming from the oat mill were kept and from that point the process was the same as described.

By reason of the thinness and lightness of these oat hulls they are extremely hard to grind, and machines known as attrition mills are provided for this purpose. These mills consist of two iron discs, set close together, which rev.olve in opposite directions at a very high rate of speed, grinding the oat hulls between the plates as they revolve, each plate making 1,000 to 2,500 revolutions a minute; to- grind these oat hulls these discs "are practically in contact, the thickness of a couple of sheets of paper apart. Foreign substances getting between the discs are apt to throw sparks^

The defendant’s mill consisted of three parts, the feed mill, the oatmeal mill and the elevator, the mills being on either side of the elevator. The explosion occurred' in the feed mill, where at "the-time they were engaged in grinding" oat hulls, and was supposedly caused by some metallic substance being caught in the revolving ■ knives at the attrition mill, creating a spark which was carried along with the ground product until it reached a bin, and dropping into the bin which was filled with the suspended dust of the ground product, ignited this dust and caused the explosion. The attrition mill was located on the first floor and the ground product went from the attrition mill to the cellar, and was^ then elevated to the third floor and dropped into a hopper bin which occupied the third floor and extended down into the second floor.

The plaintiff had been in the employ of the defendant for a period -of about two months, and during that time he had been engaged on the second floor of the defendant’s mill sewing bags and filling bags with the. product of-the mill and weighing them. At the time of the explosion the defendant was filling a bag at one of the spouts connected with one of the bins on the second floor. The effect of the explosion was to fill the room for some distance from the bins with flame, and plaintiff’s hands, face and neck were burned. The case was submitted to the jury upon three propositions:

First. Was the defendant negligent in failing to use a scalping machine, in addition to the magnetic separator, for the purpose of separating foreign substances from the hulls %

Second. Did the defendant negligently permit an accumulation of dust, which increased the danger from explosion ?

Third. Was the defendant negligent in failing to warn the plaintiff of the latent dangers connected with his work ?

The jury rendered a general verdict.

To sustain the allegation that the defendant was negligent in not using a scalping machine in addition to the magnetic separator, the plaintiff called - as witnesses two experts, Mr. Ortman and Mr. Gordon.

Mr. Ortman testified that he had been superintendent of. the George Urban mill in Buffalo for twenty-two years, where the kind of work done was making flour. He was familiar with the general process of milling, and knew what an attrition mill is; had observed them -in operation; mostly for grinding coarse cereals. The grain is fed into an attrition mill through a spout over the top. He was familiar with the effect of foreign substances getting into an attrition mill. The effect of a piece of iron getting into an attrition mill is, that it is apt to throw sparks. The method generally in use for preventing foreign substances from getting into an attrition mill is a scalper. That device is a sieve that oscillates, It is spread under the elevator that carries the feed to the grinding mill, so that the feed passes over this before it reaches the attrition mill. The oscillation of the sieve shoves the foreign substances to one side, while the fine grain goes through. “We have used scalpers in front of feed mills for thirty years; they are merely to prevent their spoiling the mill. A magnetic separator is a machine with a number of magnets, where the material runs over to the mill. It takes out the iron, wire, any metallic substance. I have known substances to go by, especially where the feed was heavy. The magnetic separator is generally used in a feed mill in connection with a sieve, screen or scalper. I have not observed the grinding of oat hulls. * * * I have been familiar with the method of grinding oat hulls for a number of years through trade journals and talking to other millers. * * * I have had no experience in grinding oat hulls in an attrition mill.- * * * The opportunities are many of picking up any foreign substances excepting in the carrier. In the carrier a bolt might become loose, screws might wear away from the wood and come off. This magnetic separator is there to take out these mineral substances. * * * I have known instances where something went through. The magnetic separator is the usual, ordinary and customary way"of taking out foreign substances before grinding.’1 A sample of oat hulls having been shown to this witness, he testified further: “Ton would have to have, to properly sieVe that, about a quarter' of an inch mesh in the screen. Small particles might go through, tacks, small pieces of glass, so that it would only pick out such pieces of foreign substances as was more than a quarter of an inch in diameter. My system of scalping wouldn’t be any good excepting for pieces that wouldn’t go- through the quarter-inch mesh'. Small pieces less than a quarter of an inch probably would go through. The magnetic separator should be placed after it had gone through the scalper. The purpose of this scalping is an extra precaution. I have never seen one used in connection with a magnetic separator. The magnetic separator is the latest known device-for separating foreign substances from the grain.”

Gordon, a miller of thirty-two years’ experience, had never ground any oat hulls. He testified : “I have never seen oat hull's ground. I never seen them ground, not alone. I have seen them ground mixed with other material: I_ have' never seen them grind oat hulls.' I don’t know what the customary way of separating or protecting against foreign- substances in grinding oat hulls is. * * * I don’t know anything about the grinding of them alone.”

Testimony of defendant’s experts : George H. De Grood, chief millwright of the H. O. mills, a large concern operating-in Chicago, Hamilton and Buffalo, testified that in the H. O. mills they ground . oat hulls extensively; that the process adopted by that concern for separating foreign substances from the oat- hulls before they went into the attrition mill Was to run them through a magnetic separator; that they had no other device in the H. 0. mills for separating ■ foreign substances; that he had never heard of any other device than a magnetic separator which could be used for separating oat hulls from foreign substances before they went into the attrition ■ mill; that a scalper would not be of any use or benefit in connection with a magnetic separator; that he'was familiar with the operation of scalpers, and that -the effect of using the scalper on oat hulls is that the ground hulls would fill up the meshes of the. sieve so completely" that it would be ineffective. This witness had had experience in the H. 01 mills for some thirteen years, and he stated that from his experience it was his opinion that it w^ould be impracticable to attempt to separate foreign substances from -.oat hulls by means of the scalping process.

Alfred Baxter testified that he was an expert milling engineer of twenty-five years’ experience; had erected mills in every State of the United States except one, and also in Canada, and wa,s the expert consulted in the erection of the mill of the defendant; that ^thc machinery in the mill of the Buffalo Cereal Company was of modern design; .that his experiencé in the construction of mills which grind oat hulls was very extensive; that he had constructed from fifty to seventy-five mills of that character, and was familiar with them all over the country. Referring to defendant’s Exhibit 1,‘he stated that this was the kind of machine that is in defendant’s mill; that he had never seen or heard of a scalper or separator being used in addition to an automatic magnetic separator; that there was no other device known to him other than a magnetic separator as installed in defendant’s .mill for the separation of foreign substances from oat hulls.

Fred L. Mackenzie, miller of the Husted Milling Company, testified that he had been engaged in the milling business his entire -lifetime and worked in mills in various parts of the country; that he had had experience in grinding oat hulls; that the machinery used for separating foreign substances from the oat hulls in his experience was the magnetic separator; that lie was familiar with the operation of scalping machines; that he had never seen one used in the process of grinding oat hulls, and that in his judgment a scalper would be ineffectual, because the size' of the mesh of the scalper would necessarily be so large that the foreign matter would go through the mesh, as well as the oat hulls.

Lawrence F. Harmon, on behalf of the defendant, testified: “ My business is that of a cereal miller. I am the president of the Buffalo Cereal Company; I have been since it was organized. * * * I am familiar with the construction of the mill. I have been connected with other cereal milling companies; I have built other cereal mills than this one. * * * I was formerly, connected with the H. O. Company; I built three mills for them. * * * I am familiar with other cereal mills in this country; I have been in a good many of them; I know generally how they are constructed. I am very familiar with this mill of which I am the president. * * * In other mills I have seen and am familiar with there is no process than the magnetic separator for separating these oat hulls from any foreign substance that may collect in it, to my knowledge. * •* * Q. What do you say as to whether it would be a proper method to use a scalper in connection with this magnetic separator to pick out- any foreign' substance that might go -through this with oat hulls into this attrition mill ? - A. I don’t think it is practical,- for the simple .reason that oat hulls are so light that they wouldn’t sieve through a small hole, and any sieve, wire or any device that had perforations large enough to allow oat hulls to pass through would allow any small nail, tack or anything else to go along with it, and I have investigated the thing for fifteen or sixteen years, and I believe it to be absolutely impracticable.”

In the charge the court in substance left it .to the, jury to say whether or not, in order to have made the place in which the plaintiff was set at work1 reasonably safe and suitable for the doing of that work, the defendant should have furnished and had in addition to the machinery that it did have, a so-called “ scalper ” or sieve at some point between the elevator and the magnetic separator. The defendant’s counsel upon this branch of the case made the following request: “ I ask the court to charge the jury that the preponderance of the evidence establishes that there is no necessity for any device to. separate these oat hulls than the machinery that the defendant did use. By the Court: I intend to leave that to the jury squarely. I will not charge it in that language. [Defendant excepts.] ”

The request should have been granted. The preponderance of the'evidence established the fact that no machinery additional to that in use in the defendant’s mill was required, and that the appliances in use in the defendant’s mill were regarded by men of experience and skill as safe and proper, but also that they were the- best possible appliances in use. The plaintiff’s experts were without personal knowledge of the machinery required in grinding oat hulls or its operation. Mr. Cordon had never had any experience in grinding oat hulls. Mr. Ortman testified that he did not know anything about the process, and did not know of a cereal mill grinding oat hulls as the defendant was grinding them at the time the plaintiff was hurt, that has a scalper in connection with the magnetic separator. The plaintiff’s experts, although practical millers? were without any experience in grinding oat hulls? which it appears requires machinery peculiarly adapted to the purpose. The plaintiff’s contention that the defendant should have had this scalper or sieve at the point indicated by the court was unproved, and should not upon the evidence have been submitted to the-jury.

Did the defendant negligently permit an accumulation of dust which increased the danger from explosion %

The court presented the question to the jury in form as follows : “ Another question which seems to be sharply controverted as a question of fact in the case, is the complaint on the part of the plaintiff that the accumulation of this dust from time to time should have been removed, in order to promote or preserve the safety of the employees as far as possible in doing the work where it existed.

“ The testimony is undisputed that that cleaning up of this dust should be done frequently, or at least from time to time when the bins were empty. There is testimony in the case tending to show that for about a week prior to the happening of this accident—Mr. Kell says for about a week.before this accident happened that they were rushed with their work and that they did not, as a matter of fact, clean tip this place, the dust, as they had been in the habit of doing. Kell says that he spoke to Mr. Thomas about it, the superintendent, and that Mr. Thomas told him it would have to rest, was the substance of it I think, until they got, through the rush in their Work. That is about the substance of what he claims Thomas said. The contention being on that point that the defendant itself, through its superintendent, *' * * was responsible for the omission to clean up this dust for the space of about one week before this accident happened, and the claim is that the accumulation of this dust during . that period of time increased the danger involved, in allowing that dust to accumulate in that place, and the contention is, on the part of the plaintiff, that by reason of that accumulation during this week or so of time added to and increased the danger. Gentlemen of the jury, I think that is a fair question of fact for you, as to whether it did or not, and if it did, and the plaintiff is otherwise entitled to recover, the defendant, as to that phase of the case, is simply liable to the extent of the increased damage which he sustained in consequence of allowing this omission of the cleaning up of the dust during that period of time. If that were the single proposition in the .case, it would 'be liable to that extent and that only.” ■ x

The bins into which the ground product passed after going through the attrition mill were on the third floor and extended below the floor into the second floor. They were about six feet square at the top and five feet at the bottom, brought down -to- a hopper and from eleven to twelve feet in depth, made of matched lumber, dressed on both sides, nailed to upright two' by fours, dressed on four sides. The .bins were open at the top. The only parts on which dust coulá accumulate were the two by four sttidding inside the bins and the joist which supported the floor above. There was no claim of spontaneous combustion. The dust was explosive only when in contact with fire.

The plaintiff’s expert, Ortman, testified: “ I' know what a dust explosion is. I have seen one. The cause is dust accumulating in bins, especially when it is in the' air. The explosión comes about after this condition exists. Generally by some fire coming in contact with the dust that is floating in the air. * * * I am familiar with the general practice as to cleaning bins which are in daily use for grain, feed, flour and other products. The practice about keeping bins free and clean from dust is sweeping them out, take a broom and sweep them out. Generally do that whenever they are empty. * * * It is customary to clean out bins when they are empty; it might happen once a day, it might happen in two or three days, it might happen once a week. Dust in a. bin is created by the fall of the material going down into it. * * * The more dust the stronger the explosion. That dust that I speak of is known as mill dust. That accumulates every time to some extent that you empty flour or any ground product into a bin. * ■ * * The purpose of cleaning bins is to keep them clean, keep dirt from accumulating. These bins, if they were cleaned every hour for instance, swept out every hour and then the ground product was turned into them, that ground product would accumulate some amount .of dust immediately. There would be a floating dust in the bin. And it would be just as inflammable as though it had been there a week, just as likely to catch fire, but I think it would be nothing "but a flash. It would catch-fire just as quick if it had been cleaned out an hour or two before or a week before. It would be a flash and go out if there wasn’t much dust. If this mill had been running, emptying the ground product in there and this dust raised up in the bin, that would be just as inflammable and explosive.” -

Gordon testified that the dust accumulates and rises up in the bins as soon as you pour in the ground product. That fills the air inside of the bin. Assume you sweep out this bin every two hours instead of every two days, as soon as you commence to pour the ground product into the bin the bin would become filled with that ground fine powder dust or ■ the ground product, provided the bin was empty and the stock had a good ways to fall. That would be just as explosive as if it had not been cleaned out for two weeks.

The plaintiff proved by Kell, the miller in charge of the mill, that the bins had been cleaned every night, but had not been, as stated by the court, for the space of about a week before the expíosion owing to the rush of work. This, as shown by the testimony of plaintiff’s experts, was proper management of the mill. It was also shown by the testimony of Ortman and Gordon that it is the dust which rises and fills the air in the bins, when the mill is in operation that explodes, and that that is just as explosive if the bins are cleaned out every two hours as if not cleaned out for two weeks. The accumulation of dust on the studding and joist would not add to the force of the explosion. It might possibly have added some fuel to the flame if fire ensued. But it was the burning of the dust from the explosion which filled the room in which the-plaintiff was at work that caused the injury. The plaintiff says the “flame-was a flash. It was a flash like; there was no noise accompanying it.” The plaintiff was at work on the second floor, filling sacks of grain from a spout. The room in which the plaintiff worked was cleaned every day. It was cleaned the day before the accident, so that there was not in that room any accumulation of dust which increased the danger from explosion, assuming that an accumulation of dust adhering to any part of the building would have that effect; a fact exceedingly problematical. An increase of liability of the defendant, as suggested in the charge, because of the accumulation of dust, 'would be extremely speculative. The explosion was a flash such as was described by the witnesses Ortman and Gordon.

We think the charge, that, if the plaintiff was otherwise entitled to: recover, the defendant was liable to the extent of . the-increased damages sustained in consequence of an omission to clean up the dust, erroneous. , • '

The further point is made that the court' erred in charging the jury that, the duty rested upon the defendant.to instruct and warn the-plaintiff with reference to latent dangers,; but as'this will be a ‘ matter of further investigation in case' a new trial is had, it is unnecessary to enter into a discussion of • the question upon the evidence now in the record. ...

The judgment and order should be réversed.

All concurred, except Kruse and Spring, JJ., who dissented in ' an opinion by1 Kruse, J, ,

Kruse, J. (dissenting):

I dissent.' The defendant’s negligence was- predicated upon two grounds:

1. The failure to use reasonable care to - clean the, oat-hulls, from pieces of metal and other foreign substances which, in passing - through .the attrition mill with .the oat hulls, would be-liable .to strike fire and thus ignite the ground' hulls, and in turn, fire the dust which was permitted to accumulate on the sides and corners o.f the bins, and. eventually cause the.other mill dust to explode; and,

2. The failure tonse reasonable care to.clean andprevent the dust., so from accumulating on the sides, coimers and other parts of the bin, by means of which the smouldering, fire in the ground oat hulls Would be communicated to the accumulated dust outside the bin", including what permeated the air in the mill, causing it to explode and burn the plaintiff. ."

I think both causes contributed to the explosion and injui-y-done the plaintiff, so the jury were warranted in finding, and' either ground sufficient to make out a cáse of actionable negligence against the defendant. ' .

Much more care was used in cleaning and keeping clean .and free from- foreign substances the oat hulls made as a bjuproduet in this mill than thp oat hulls, which were brought there on the cars and mingled with the hulls made on the premises. The whole oats were '■ first put through several machines to clean them, then dried, then hulled- and" passed over fine sieves to remove the dust. The Oat halls were then drawn from the heavier product by air suction, and thereafter stored in bins, passing from the bins to the grinder over a magnetic separator to remove such pieces of metal as might still remain with the hulls. The thoroughness, of this last mechanism in doing its work necessarily depended to some extent upon the quantity of the material and its speed in passing over the machinery . in a given time. . <

As regards the hulls not made upon the premises, it is not apparent what care was used to keep them clean in the process of manufacture. They were brought to this mill in box cars, and it is clear that pieces of nails and other foreign substances would be liable to get mixed in with the hulls. As showing the lack of cleanliness, it appears that they were taken from the cars and put through grates, the rods of which were a quarter of an inch apart, for removing the coarse substances, and then mixed with the hulls made upon the premises, without subjecting them to further cleaning or process for taking out foreign substances, except to pass the mixture composed of these two kinds of hulls over this magnetic separator.

I- think the proof fairly shows that the magnetic separator wa£ n,ot entirely successful, as fire was frequently found to have been communicated to the oat hulls in the process of grinding before the fire upon this occasion which caused the explosion. In view of the fact that the hulls from the outside were not subjected to further cleaning, I think it was entirely proper for a jury to- say whether the defendant used reasonable care to prevent foreign substances from getting into the attrition mill with the oat hulls in process of grinding, which would be likely to set them afire, and eventually cause an explosion and injure its employees in the mill. And under the evidence in this case it was a fair question of fact whether this device known as a scalper was not practical and whether with due regard • for the safety of the workmen it should not have been used.

The scalper is a sieve that oscillates. It is covered with a screen, through which the finer material passes, while the larger is shaken off. One of the plaintiff’s witnesses testified it was a method generally in use for preventing foreign substances getting into an attrition mill while it is in operation. And the defendant’s own superintendent himself testified that there was a combination of scalpers in the mill where the product is worked over from one end of the plant, to the other in. the cleaning department of the cereal mill,.anch that all of the oats that come into the mill are ground there and have to go through t'lie different scalper’s. That, of course, referred., only to the hulls' made ,in the mill. He described what was called a receiving separator, saying that it is a similar device to the scalper which the plaintiff’s experts described; that it was the same thing, but having about six times- the* capacity. There was other evidence upon the practicability and necessity of using such an appliance. ■ • " '

It seems to me it can hardly be said that there was no evidence to warrant submitting to the jury the- carelessness of the defendant upon this branch of the case.

It is unnecessary to refer to all of the testimony showing the danger of hilo .wing dust to accumulate on the sides of the bins. The testimony of one of the plaintiff’s witnesses, an expert milling-,engineer, may be taken as a Sample.. - He says in the business of grinding bat hulls it is necessary-to keep the bins and .other surroundings free and clear from- all unnecessary dust. If there is an explosion on the . inside of the bin, the' fire will produce force enough to carry the conflagration outside’ of the bin, and where the outside of the bin, the rooms, the ceiling and rafters are thick with dust, they carry the explosion. And this is evident from the further fact, which is not in’ dispute, that for a time the insides of the bins were cleaned every day, and the defendant’s, superintendent himself testified that he.’knew of several times before when fire was found in the bin, and that if it got into the bin there was liable to be a dust explosion, which would endanger the lives of the. workmen. He claimed that the room- was cleaned every day, but he - could not- swear whether the bins were cleaned every day for the week before ’the accident. He denied, however, saying to the man whose duty it seems =to have been to" clean the bin’s to refrain from cleaning them owing to stress of work, as testified to by the workmen.

As has- already been stated, I think that upon both branches, of the case, upon which negligence was charged against the defendant, there was Sufficient evidence to submit the case to the jury. But even if the best appliances aud’the best machines had been used for cleaning the oat hulls and -freeing . thém from foreign substances, yet if the defendant was negligent in permitting the dust to accumuíate in the bins and mill so as to endanger the safety of the workmen, that alone was sufficient to charge the defendant with such want of care as to subject it to liability for the consequences of the explosion, assuming, of course,, that the plaintiff’s case was made out in other respects.

I think the judgment should be affirmed.

Spring, J., concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event upon questions of law and fact. .  