Dixie Pine Products Co. v. Maryland Casualty Co.

SIBLEY, Circuit Judge

(concurring).'

I concur in the judgment awarding a new trial because the case should have gone to the jury. I think, however, there are issues other than those indicated in the opinion.- The boilers where the friendly fire was were in a separate building thirty feet from that where the extractors were giving off the combustible vapor. Twenty-five or thirty minutes elapsed between the time the escape of the vapor began and the time it reached the fire and caused the explosion. During this time the danger was foreseeable and was foreseen. The progress of the vapor was sought to be stopped by the use of fire hose to condense it, instead of simply putting out the fire. There may be reasons why the friendly fire could not have been extinguished, but the evidence is silent about them. I think there is a jury question as to whether neglect to extinguish the fire was the true direct cause of the explosion.

Again, there is evidence that a number of connected extractors were being filled with liquid to be heated, pumped in by a steam pump. There was no safety device to stop the pump if the pressure became too great, or to relieve the pressure otherwise, but the pump had to be stopped at the proper time by the operator. In this record the operator testifies he did shut the pump off, but there is testimony the pump was found wrecked from internal pressure, and not one copper pipe only, but several of the same sort, were found bursted, and several of the extractors had their doors cracked outward and their riveted seams so strained as to require internal welding; so that the repairs to the extractors cost many thousand dollars. While not clearly presented by the pleadings, the evidence seems to me to present a reasonable issue as to whether those injured extractors, all being insured against accident from internal pressure, were not injured by over pressure, caused by the pump, or steam heat, or both, rather than by the external explosion, and before the explosion took place. The wrecked pump makes a sufficient contradiction of the employee who says he turned it off to make a jury issue.