Appeal from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding. Judgment for plaintiff affirmed as
Rehearing denied October 24, 1966.
Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie.
Plaintiff's action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff.
The defendant's theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff's damages; that the court should have directed a verdict in favor of this defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff's complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed.
Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on.
The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building.
In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a "dirt leg." The latter testified that the contractor should install a "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not.
Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work.
Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained.
With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done.
Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to.
The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve.
There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial.
The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions.
From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition.
There is testimony by Ted Brinkoetter that the control system, upon being tested, did not always work, but there is also testimony that it functioned correctly upon tests. Harry Reynolds, an investigating engineer retained by the plaintiff, testified that it would take a very small amount of gas to cause an explosion in this boiler, and that it was particularly hazardous to operate the boiler on a "no load" basis as the mixture of air and gas gets out of balance and becomes explosive. He also testified that upon initial examination, the oil burning switch was on instead of the gas burning switch. A witness, testifying in behalf of Brinkoetter, stated that shortly before the explosion, Enders flipped a switch and that the flame in the boiler went out and did not come on again.
It is one of defendant's arguments that by this contract it was to furnish a package boiler but had no responsibility for its installation. This position was taken in its first motion to the complaint and is argued here.
The nature of defendant's disclaimer seems to be based upon its Exhibit #1 contained in a foreword to the instruction manual which Erie shipped with the ...