“Although the parties differ in their application of the law to the facts presented, there is no substantial dispute between them as to the principles of law applicable to this case.”
How later courts described this case
- “Although the parties differ in their application of the law to the facts presented, there is no substantial dispute between them as to the principles of law applicable to this case.”
Written by the judges who cited it.
The opinion
Thomas Gallagher, Justice
(dissenting).
I am of the opinion that the evidence fails to sustain a finding of negligence on the part of defendant. The printed instructions made no reference to plug P. It was installed on top of the burner with an electrical driver and could not be removed without a wrench. It was designed and intended to close an opening in each burner left for the purpose of inserting a mechanical as opposed to an electrical limit control if desired and for oiling those burners equipped with leather rather than synthetic rubber diaphragms. The burner which exploded here was equipped with an electrical limit control and with a synthetic rubber diaphragm so that plug P served no function in connection with its operation and did not have to be removed.
*279 The burner was not inherently dangerous, and there is no evidence that the design or plan of its construction was defective or would constitute a source of danger to those using it. Even the removal of plug P was not inherently dangerous unless the gas line was turned on at the time. Had the burner been used in the way that it was intended to be used — in the way which defendant might reasonably anticipate it would be used — no danger whatever would have attached thereto either because of plug P or because of the general design or plan of construction.
While there is testimony that the removal of plug P would “bleed” the line of air, the record is replete with evidence that such a method would be extremely dangerous. Its removal had the effect of releasing the gas pressure within the main valve of the diaphragm and permitting the gas to flow into and accumulate in the combustion chamber of the burner. In consequence, when decedent and the others again endeavored to ignite the burner after its removal, the accumulated propane gas and air caused the explosion which followed. Their actions contrary to directions can scarcely be said to establish negligence in the construction or design of the burner.
As to the instructions furnished by defendant, in my opinion they do not appear to be inadequate. They included an installation manual and a separate instruction form which contained specific directions covering “Initial Start Up,” “Normal Starting Procedure,” and included a “Trouble Chart.” Only in the “Initial Start Up” instructions was any reference made to purging the lines of air. This instruction was plainly designed for the party installing the equipment. Where the installation had been completed, the lines freed of air, and the “initial start up” made, as was the case here, the reference to purging the lines of air obviously had no further application. In particular, it had no application to decedent who, at the most, would be expected to follow only the instructions relative to “Normal Starting Procedure.” In the latter, as in the “Trouble Chart,” there is no reference to purging the lines of air nor to plug P. Even in the “Initial Start Up” instructions, plug *280 P is not mentioned as an outlet for air in the lines. Had the “Normal Starting Procedure” been followed, there would have been no explosion.
Based upon the foregoing factors, I am of the opinion that the record fails to disclose actionable negligence chargeable to defendant.