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 *643halls 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 *644plant, 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 accu*645muíate 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. .