Appendix — Elgin, Joliet & Eastern Railway Co. v. Del Raso

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APPENDIZ .

OPINION OF THE ILLINOIS APPELLATE COURT

Mz. Justice McCormick Detiverep THe, OPINION OF THE

Covsr. : 3 aes

The four plaintiffs brought an action ‘under the Federal

Employer’s Liability ‘Act*. to. recover for the injuries they

incurred. from lead poisoning they sustained while in the

employ of the defendant’ railroad. The jury brought in

separate verdicts for each of the plaintiffs in sums of

$14,500 for Del Raso, $12,500 for Dalpiaz, $8,000 for —

Sybert, and $3,000 for Benson. Judgment was enteréd ‘on

the verdicts. The court denied. defendant’s motions for

judgments notwithstanding the verdiet, or, in the alterna-

. tive, for a new trial. From these: judgments and from

* 45 U.S.C. § 51. reads, in pertinent part: Liability of

common carriers by railroad, in interstate or foreign

commerce, for injuries to employees from negligence; —

definition of employees. / oF:

‘ Every common carrier by railroad while engaging

.in commerce . . . shall be liable in damages to any .

person suffering injury while he is employed by such

carrier in such commerce... for such injury or death

resulting in whole or in part from the negligence of

any of the officers, agents, or employees of -such

carrier, or by reason of any defect or insufficiency, due

to» its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats, wharves, or

‘other equipment. — ° ‘

» Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance of

interstate or ‘foreign commerce; or shall, in any way |

directly or closely and substantially, affect such éom-

merce as above set forth shall .:. . be considered as .

being employed by such carrier in such commerce and

ym Ha considered as entitled to the benefits of this

i &

ir egha owed Loa ne alee so deleted Acticin litlpiae aie «6 RS ee

.

Ole

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the order denying the methene, after “he the defendant

brings this appeal.

-It is defendant’s position that there was not sufficient

evidence to show that it knew or should have known of

the presence of lead paint on the railway cars on which

plaintiffs were working; that the court erred in refusing

to mairen the jury on the issue.of defendant’s lack of

a (Continued) is

45 U.S.C. § 53 reads: Contributory wilt diminu-

tion of damages. '

In all actions hereafter brought against any sale

common carrier by railroad under or by virtue of any

of the provisions of this chapter to recover damages

for personal injuries to an employee, or where such

injuries have resulted in his death, the fact that the

employee may have been guilty of contributory negli- -

gence shall not bar a recovery, but.the damages shall

be diminished by the jury in proportion to the amount

of negligence . attributable to such employee:. Pro-

vided, That no such employee who may be injured or

killed shall be held to have been guilty of contributory

_ negligence in any case where the violation by such

‘ ‘common carrier of any statute enacted for the safety

of employees contributed to the injury or death of

such employee.

45 U. S.C. § 54 reads: Assumption of risks of employ- |

ment.

That -in any action brought against any common

carrier under or by virtue of any of the provisions ..

of this chapter to recover damages for injuries to, or

the death of, any of its employees, such employee

shall not be held to have ‘assumed the risks ‘of his

employment in any, case where such injury or death .

resulted in. whole or in part from the negligence of

‘ any of the officers, agents, or employees of such

. carrier; and no employee shall be held to have as-..

sumed the risks of his employment in any case where ©

-’ the violation by such common carrier of any statute

_ enacted for the safety of employees contributed to the .

injury or death of such —

——-

knowledge of the existence of a hazard of lead poisoning;

and that the court erred in withdrawing the issue of con-

tributory negligence from the jury. Moreover, defendant

argues that the verdicts were excessive.

Defendant had employed the four plaintiffs for several

years and in October of 1955 had assigned them to strip-

ping a particular series of gondola cars (the 31,000 series)

prior to defendant’s rebuilding such cars. As shown by

the evidence, a gondola car is an all-steel car with a flat

"door, sides about five feet high, and no roof. To strip such |

a car defendant’s employees remove the rivets and then .

puli out the floor with a crane.” Other parts. of the car

are removed in a certain order thereafter. The plaintiffs

were assigned to working on the initial stage of the

stripping process. The critical event in their wark, as it ;

concerns this case, is the method by which they removed

the rivets, by “burning” them. The intense flaine from an

acetylene torch was directed onto a rivet head which had

been painted over; when it. was “cherry red” the rivet

head would be: blasted off. However, as the area heated

the paint thereabouts would smolder and boil, releasing

noxious smoke and fumes. These gaseous wastes would be

inhaled to some extent by the. operator of the torch, since

he had to hold the flame of the torch dt least 18 to 20

- inches away from. his face so that he could see what he

was doing, and inasmuch as the defendant had not sup-

plied the operator with any protective breathing device

until after plaintiffs became ill. Benson, for example,

testified : 7

“That is hot matal and the paint would ‘be smoking

all the time, you were ¢utting the rivet out. The

smoke would be going in your face and ‘the metal

would be flying back at you. You had to do it the

_best way you could because you had to be close or

. .

ae i = olga 8 os os we een hen MO wtih ge a elildd hata tener. simi bi noi a enh S

you couldn’t get the rivets. out successfully. After you

had been doing this work for a couple of hours you

would be just as black as coal.”

Dalpiaz stated that “when you itt burn off the paint

. you would get sort of vapor and fumes and black smoke.”

Sybert testified that “we had to burn the rivets and blow |

them and got the fumes which would make you cough and .

feel faint.” The evidence showed that each man removed

approximately 250 to 300 rivets by this process each

8-hour working day. The defendant supplied plaintiffs

with protective clothing (plain overalls,*canvas jacket,

burner’s goggles; leather gloves and leather leggings) but

not with inhalators or masks until three months after

_ plaintiffs began complaining that they | thought the smoke

was making them ill.

Benson testified that he was assigned to the burning

job in the first week of October 1955; that in the latter

part of that month he began to suffer from nausea, ©

stomach pains, and loss of appetite; that in the following

* month these disorders increased and he felt pains in his

legs. At that time the defendant had the series 30,000 and

31,000 gondola cars on the stripping tracks. Benson told

the court that the men on the burning job noted that ~

there’ was a red paint under the outer coating of black —

paint, and that the men called this undercoating “lead

paint.” In October and November, according to Benson’s

testimony, he approached his foreman, one Ernie Koleto

(who was deceased at the time of the trial), and com-

plained that the smoke was bothering him and ‘that he

thought it was something in the paint; Koleto replied that

if Benson didn’t want the work he could go home; Benson

returned to work, but again complained in November; at ~

which time Koleto told him to return to work, that “it

must be old age creeping up .. .” After these two con-.

versations with Koleto, Benson testified, the defendant

company still did not provide Benson with any equipment:

to protect him from the fumes. Prior to the time he was

hospitalized, Benson and several of his fellow employees

were laid off for nine days after they had taken an un-

‘ authorized break from the burning job; .at that time they

told the supervisor that the smoke was making them sick

and they would like to get off the burning job, but the

supervisor refused. Benson further testified that in early

February 1956 when he went to his doctor he immediately

_ thereafter stopped working’as a burner, and entered the

hospital where he was placed under the care of defen-

dant’s doctor. |

The testimony of Del Raso, Sybert and Dalpiaz was

substantially similar. Del Raso went to his physician in

December; Sybert went on about December 28 to see a

doctor who was associated with defendant’s doctor; Dal-

piaz went in February to see a doctor who sent him back .

to the railroad, and after seeing his general foreman, was

sent. to the hospital.

_ It was brought out in testimony at the trial that lead is

- @ toxic material and its main effect on the human body is

its attack on the central nervous system; it also causes

nutritional disbalance which in turn causes loss of weight,

lack of appetite, and constipation. The individual may

suffer from irritated gums, and his teeth may become

loose and require removal. There is a certain amount of

lead in the system of the normal, healthy person; lead is

found to a certain extent in the food one eats—fruits,

vegetables and meats. Abnormal amounts of lead can

enter the system-if a person ingests, eats, or inhales lead

in some form, or if he absorbs lead through the skin. In

the case of these plaintiffs, they were exposed fo fumes

a

from burning lead paint. The lead entered their bodies

' through the lungs and was picked up in. small quantities

‘by the blood stream and distributed through the body;

the hemoglobin in the blood carries the lead. Defendant’s

doctor described the lead as “toxic to everything it

touches.”. Eventually the lead joins with or is compounded

with calcium and is deposited: in the bones; without out-.

side interference it will stay there and no longer be harm-

ful. Generally, a person suffering from lead poisoning is

treated as follows: He is removed from exposure to lead;

he is given abundant quantities of liquids and large doses:

of calcium and vitamin D, along with intravenous injec- .

tions of sodium calcium versenate to hasten the process by

which the lead is either deposited in the bones or is

excreted. Sometimes the individual is given sedatives to

relieve the pain and vitamin pills to improve the appetite.

Lead poisoning is painful because of the irritation it

causes to the nervous system. When the individual re-

turns to a relatively normal level of lead content in his

blood and urine he can ‘return to normal activities.

‘From the evidence in the record, each of the plaintiffs

was suffering from lead poisoning which revealed itself

through the symptoms described above and through

X-rays, blood and urine tests. Each plaintiff was treated -

for such malady and later discharged from the hospital

with a medical finding that he could return to work. |

Del Raso testified to having suffered from stomach

cramps, weak appetite, headaches, vomiting and chest

_ pains. He was hospitalized twice, the first time for two

weeks and the second time for about one week. He was |

placed on a special diet, given shots, and fed intravenous-

ly. He continued to be under medical care for five months

. after his second release from the hospital, after which he

changed doctors and was hospitalized a third time for -

_—la—

about two weeks, and stayed under the care of this doctor

for a year and a half. He complained that he still felt

some of the effects of the poisoning, amhougn he was no

longer takings any medication. |

Dalpiaz stated that he initially wctiteite from nausea

and stomach pains; that everything ‘tasted as if he were

“eating paint or metal”; that affer he complained to his

foreman his condition continued to deteriorate; that he

couldn’t eat or drink, his head severely .ached, he had

pains in his arms, legs, chest and mouth, and his teeth

all became loose and» ached. He was hospitalized in

February 1956, and remained away from work for 28

days; he went into the hospital again in 1957 for about a

week. - He testified that he was still taking some medication

for his continuing nervousness and that his teeth were

still sensitive to hot and cold foods. He also stated that

he had gone to the hospital in 1962 because « a recurrence

of the symptoms.

Benson told the’ court that he bag suffering from

nausea, stomach pains and loss of appetite in October

1955; that in the following month these disorders in-

creased in sevérity and he suffered pains in his legs. He

stated that in early February 1956 he went to his doctor

and immediately thereafter stopped working as a burner;-.

that he entered the hospital where he was placed under

the care of defendant’s doctor and remained there for

about 18 days; that by the time he entered the hospital he

was suffering from pains in his arms, legs and stomach,

and was sweating and nauseated; his teeth were loose. He

testified that after he was recovered he -— had symptoms

of nervousness and sweating.

Sybert testified to having had bad: pains in his unt,

pains across his chest, sweats, weakness of legs, constipa- _

tion, sleeplessness, and an inability to taste foods. He .

stated that he was hospitalized’in January 1956, being

given much the same treatment as the other plaintiffs;

- «that his last blood test was in May 1956, which showed his

‘blood to be within normal limits of lead content; that he

continued to exhibit symptoms of nervousness, and _ that

the doctor who treated him testified that this nervousness.

would continue to a certain degree for years. Other testi-

mony indicated that at the time of the trial Sybert was

perfectly healthy and capable of normal work; that since

May of 1957 he had seen no doctors, nor had he taken

any medication for the conditions. relating to lead poison-

ing; that he lost six teeth during the time he was suffering

from the poisoning; that they became so loose he ae

pulled them out.”

The rates of pay of the plaintiffs varied tion about

$2.04 to $2.13 an hour. Del Raso’s doctor bill was $185,

and he was away from work for about two months; ;

Sybert’s doctor bill was $110, and he lost 31 days of work,

including 15 days in the hospital; Dalpiaz’ doctor bill was

$160, and he lost 28 days of work in 1956, seven days in

1959, and several more days through the years; Benson’s

doctor bill was $40, and he was off work for one month.

In January of 1956 the defendant supplied the men.

working on the burning job a small muzzle-like mask

which had a throw-away cartridge. The mask did not have ~

an independent air supply, but was a filter. It hooked over

the wearer’s face, and the cartridge was to be changed two

or three times a day. These masks did not: prevent the —

wearers from breathing in lead gases, and they were still

able to smell and taste the gas (paint fumes) through

the masks. Although defendant had safety meetings

scheduled each morning at which a foreman presided,

ain:

the plaintiffs were never warned of the danger of fumes

from the work they were doing.

Defendant’s theory of the case is that until January

1956 it had no knowledge constructive or actual of any

hazard of lead poisoning or of the presence of lead paint

_ on the cars which were being. stripped; that from the time

defendant was charged with knowledge it provided the -

men on the burning job with masks and respirators, there-

by meeting the standard of reasonable care. Defendant

_ further maintains that the trial court erred: in withdraw-

ing the issue of contributory negligence from the jury,

and that in any event, the verdicts are so excessive as to

require a new trial or a substantial remittitur. In support

‘ of the argument that there was neither sufficient nor

competent evidence presented at the, trial ‘to show that

the defendant knew or should have known of the presence

of lead paint on the cars, defendant cites Urie v. Thomp-

son, 337 U.S. 163, and Crowtey v. aa, J.d E. Ry. Co.,

1 Il. App. 2d 481.

In Urie the U.S. Supreme Court stated that the plaintiff

had stated a cause of ‘action under the F.E.L.A., where

he had become afflicted with silicosis from inhaling silicon

dust which allegedly had blown into the locomotive cabin

where he worked, and which allegedly was improperly

guarded °zainst inasmuch as the locomotive equipment had

- not been kept in a proper state of repair. The court held

that plaintiff could sue on a theory of general negligence

as well as on a theory of violation of a statute (the

Boiler Inspection Act). The court then held that silicosis

was an “injury” within the meaning of the F.E.L.A., and

_that the protection of the Act was. not limited to injuries

“and death resulting from accidents; therefore, if plain-

tiff’s silicosis was in whole or in part attributable to ©

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»defendant’s nidiouen defendant could be held liable.

The court stated :

. we think that negligence, within the 1 meaning of

és ‘Federal Employers’ Liability Act, attached if

respondent ‘knew, or by the exercise of due care

should have known,’ that prevalent standards of con-

duct were inadequate to protect petitioner and simi-.

. larly situated employees. [Citing cases.] Respon-

~ dent’s knowledge, actualor constructive, of the alleged

—— of the sanding equipment was a jury

question. . . .”

Then, quoting from Sadowski v, Long Island R. Co., 292

N.Y. 448, 455-456, the court said:

“‘Ordinary care must be in proportion to the danger

to be avoided and the consequences that might rea-

sonably be anticipated from the neglect [citing cases].

It must be commensurate with known dangers. Defen-

dant created the place in which the work was done

and supervised the doing of the work by plaintiff and

was aware for a period of at least sixteen years of

the condjtions under which plaintiff was required to

work and of the means and methods by which its

work was accomplished. It is a matter of common

knowledge that it is injurious to the lungs-and dan-

gerous to health to work in silica dust, a fact: which

defendant was bound to know.’”

Justice Frankfurter, concurring in part in the Urie case,”

is more blunt: ,

“At the risk of wearisome reiteration it is relevant

to say again that the common-law concept of negli-

gence is an antiquated and uncivilized basis for work-

ing out rights and duties for disabilities and deaths:

inevitably due to the conduct of modern industry. In

the conscious or unconscious endeavor not to have

the human cost of industry fall with cruel injustice

upon workers.and their families, the law of negligence .

bad

* gives rise to endless casuistry. So long as the gamble

of an occasional heavy verdict is not replaced by. the

security of a modern system of insurance, courts must

continue to apply the notion of negligence in situa-

tions for which it was neyer intended. Therefore, if

a claim is made that an"injury is causally related to

a carrier’s failure to maintain standards of care ap-

propriate for employment on a railroad, the Federal

Employers’ Liability Act entitles an employee to

establish that claim to a jury’s satisfaction. Damages

are recoverable under that Act for suffering ‘injury.’

That term, it seems to me, is sufficiently broad to

-inelude bodily injury which nowadays is more specifi-.

cally characterized as ‘occupational disease.’’ Accord-

ingly, I agree that recovery may be had under the.

Federal Employers’ Liability Act for etieoes, where .

the facts sustain such a claim, .

Justice Frankfurter, however, aid not think that the |

Boiler Inspection Act covered the injury. —

The court, ‘in addition to holding that silicosis, as an

| occupational disease, came under the F.E.L.A., held that

_ although the F.E.L.A. did not define negligence, the defini-

tion of negligence was to be determined from common-law

principles as they had been established and applied in the

federal courts (ie, Erie R. Co. ¥. Tompkins, 304 U.S.

64, did not apply in an F.E.L.A. case).

Crowley v. ' Elgin, J. @ E. Ry. Co., 1 I. App. 2d 481, is

a case in which an action was brought under the F.E.L.A.

to recover for injuries which plaintiffs sustained from

occupational contact dermatitis allegedly caused by petro-

leum and chromates’ repeatedly coming in contact with

plaintiffs’ skin. The court carefully discussed the nature |

of the injury, the work history of each of the plaintiffs,

and the evidence’ presented at the trial. The court con-

cluded that the jury had sufficient evidence before it to

ee ee eS

.

on

make a finding that defendant knew or should have known

of the hazard to plaintiffs’ health, and that in the exercise

of ordinary care should have known of the danger of

contact dermatitis arising from the conditions of employ-

- ment. For example, the court noted the medical testimony

of defendant’s doctors and of the expert witnesses, of the

publications in the field, and the preventive measures

- which defendant had taken at various times. The court

cited the Urie casé and others, including Baumgartner v.

Pennsylvania R. Co.; 292 Pa. 106, 140 Atl. 622, and

Harvey ¥. Welch, 86 N.H. 72, 163 Atl. 417. The Baum-

gartner case was quoted as follows:

“.. and the master is presumed to know the nature |

and qualities of the materials Ke places in the hands

of his servants. In other words, he is presumed to

have such knowledge of matters pertaining to his

business as is possessed: by those having special

acquaintance with the subjects involved. ... . An.em-

. ployer is presumed to be familiar with the ‘dangers,

latent as well as patent, ordinarily accompanying . the

business in which he is engaged.” Wy

The-Harvey case was quoted:

. Being under a positive duty to exercise care for

a ‘safety of his servant, he was bound to make

reasonable inquiry for the purpose of informing him-.

self of the natural consequences of using the material

which he furnished [oxalic-acid]. A master ‘must take -

- into account the properties of such substances ashe

employs for the purposes of -his business and the

operation of familiar physical laws upon these -sub-

stances.’ ”

In the instant case the record indicates that there was

" evidence that the defendant railroad, through its agents,

had actual or constructive knowledge that-there was a

hazard to plaintiffs’ health inasmuch as 1) defendant was

+a

given notice that there’ was lead palak on the 31 000 s series / 2

cars; 2) the defendant was also given notice that plaintiffs

_ were suffering from some occupational hazard corinected

with the burning job; 3) it is common knowledge that the

fames from burning paint often carry noxious gases which

can, through constant exposure, cause illness; 4) the

employer is presumed to know the nature .of the materials ©

it places in its employees’ hands. Each of these will be

examined, and the rule stated in womey %. v. New York Cent.

R.R. Co., 19 Tl. 2d 428, applied:

“Under the Federal Employers’ Liability - ‘Act a

‘ carrier is liable in damages for injury resulting in

whole or in part from the negligence of any of its

officers, agents, or employees. Assumption of risk is

no longer a defense, nor does contributory negligence

bar a recovery. In determining whether a verdict in

“plaintiff’s favor is supported on the record, the sole

question is whether there is any évidence, considered

in the light most favorable to the plaintiff, that defen-

dant was ‘guilty of negligence which contributed in

‘whole or in part to the injury. [Citing cases.] The |

United States Supreme Court has recently observed

that ‘Under this statute the test of a jury case is

simply whether the proofs justify with reason the

* conclusion that employer negligence played any part,

even the slightest, in producing.the injury or death

for which damages are sought. It does not matter

that, from the evidence, the jury may also with rea-

“son, on grounds of probability, attribute the result to

other causes, including the employee’s contributory

negligence. Judicial appraisal of the proofs to deter-

mine whether a jury question i is.presented is narrowly

limited to the single inquiry whether, with reason,

the conclusion may be drawn that negligence of rs

employer played any part at all in the. injury o

death.’ _— v. Missouri Pacific, Railroad..Co., 359

U.S. 500, . 7 .

phar a

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4°

1) Dr. Meadows, the defendant’s doctor, testified in

1964 that “the use of lead base paint was discontinued 25

years ago, or more.” That‘is, in 1939 or S%metime before

1939, lead base paint was discontinued on these cars. One

might infer that if the cars had: been painted sometime

- around 1939 or thereafter, the fact that they were lead-

painted would come as a surprise to the defendant. The |

record shows, however, that®the 31,000: series cars were —_

purchased in 1937, and obviously were manufactured in

that year or earlier. Moreover, one Sanne, who was

an industrial hygienist and “safety man” testified that “as

an expert I would guess that there-was a greater likeli-

hood that railroad cars painted in 1937 had some red lead

than railroad cars that were painted later.” Benson testi-

fied that the employees called the orange -paint on the

cars “lead.” The other plaintiffs corroborated this testi-

mony. Each of the plaintiffs had seen the orange colored

paint; each had called it lead paint. It is. uncontradicted

. and uncontested that there was lead in the paint on the

31,000 series cars upon which the plaintiffs were employed.

' It would seem that if the foreman had merely seen the

’ paint or talked with any of the men employed in stripping

the 31,000 series he would have-been put on-notice of the .

fact that there was a great likelihood that lead paint was .

on those cars. ‘Kirschner testified :

“The sidiile of lead hazards involved in the’ pro-

cessing or cutting of lead painted steel by oxyacetylene

torches is known not only to people who are pro-

fessionally concerned with industrial health but: it is

known. to lay people as well and ‘to people in the

industry. The exposure to an unprotected employee

subject to oxyacetylene cutting is among the worst

of exposures and its hazardness is es by

very few other lead exposures.”

.°_—yeer -

2): Each of the plaintiffs testified that he had com-

plained to a superior regarding the effects of the burning —

. job. Each ‘had spoken to the foreman, Koleto, and had

‘complained that the smoke was causing illness: According

to the testimony of the plaintiffs, Koleto had turned a

deaf ear to their complaints and had attributed their

maladies to a desire to have an inside job during the cold

‘weather, too much to drink, old age, and goldbricking.

When they complained to the supervisor he told them

there would “be no job picking; you do the job you are

assigned to.” Del Raso testified that once, after several

of them had been laid off for taking an unauthorized break

from the burning, he had asked Koleto to put him on

another job, to which Koleto had replied: “No, you want

to get 9 days off like you had before, but this time I’m’

going to get you fired.” This occurred in November; in ©

February, when the foreman again refused his request

for a transfer, Dalpiaz went to the general foreman and

complained, at which time the general foreman gave him

a slip to go-to the hospital. The defendant’s general

argument to all of this ‘is that at the time of the trial

Koleto was deceased.and therefore not available to con- _

tradict this testimony. This fact does not nullify the —

testimony of the plaintiffs. The defendant did not bring

_.in any other witnesses for the purpose of challenging the

testimony of the plaintiffs; there were other supervisory

- personnel and fellow employees involved in the stripping

process; defendant ‘must have had some written records

‘which set forth the activities of Koleto. |

3) It is common knowledge that fumes from burning .

paint often carry noxious and toxic gases which can

through constant éxposure cause illness. From this it can

“be reasoned that since it is not necessary that the tort-

feasor foresee the particular harm which befalls plaintiff,

ge

a

_. but that the tortfeasor saw or should have seen the

general danger and taken precautions; therefore, -the de-

fendant in the instant case cannot maintain that because

the specific hazard of lead poisoning was not foreseen,

defendant was not generally failing to act with due care

for the safety of the plaintiffs.

The employer is presumed to know the nature ‘of the ©

material it places in the employees’ hands. From the testi-

mony in the record it appears that ample notice was given

to Koleto which should have caused a complete investi-

gation.

InF ELA. cases the rule is that a verdict in plaintiff’s

favor is supported on the record when there is any~-evi-‘

dence considered in the light most favorable to plaintiff-

that defendant was guilty of negligence which contributed

in whole or in part to the injury. Finley v. New York Cent.

R.R. Co., 19 Tl.2d 428.

. As the defendant points out in its brief, the italien is

wal one of whether lead in paint is toxic and could pro-

duce injury to the human system, but whether or not the

defendant can be properly charged with negligence in

_ that it failed to take the proper precautions to use reason-

_ able care to furnish its employees with a safe place to

work. Bailey v. Central Vermont Ry., Inc., 319 U.S. 350.

In Beattie v. Elgin; Joliet and Eastern Raileoy Co., 217

F.2d 863 (7th Cir., 1955), the court stated: ee

“Inasmuch as plaintiff at the time of the accident

was in a place where his assigned duties required

him to be, defendant on the issue of negligence was

chargeable with knowledge of the conditions which

existed there from time to time which in the exercise ©

of reasonable care it could have ascertained: See 8.8.

Kresge Co. v. Holland, 6 Cir., 158 F.2d 495, at page

498. In Pacific American Fisheries v. Hoof, 9 Cir., 291 -

F. 306, at page 308, the court said:

ees | — 17a —

” ‘As already stated, the duty (to furnish an em-

ployee with a working place and appliances which are

safe) is a continuing one, and notice of defects and

damages will be imputed to the master where they _

could have been discovered by reasonable inspection

and by the exercise of reasonable care.’ ” |

In Larsen v. Chicago & N.W. R. Co., 171 F.2d 841, the _

court made the following statement which we adopt with

reference to the instant case:

“Unless there is a complete absence of probative

facts, Lavender v. Kurn, 327 U.S. 645, 66 S.Ct.

740, 90 L.Ed. .916, the question of whether defen-

dant ‘was guilty of negligence ~in furnishing. a rea-

sonably safe place to work was for the jury to

determine from all the facts and circumstances. Batley

v. Central Vermont Ry., supra, 319 U.S. at page 353,

63 S.Ct. 1062, 87 L.Ed. 1444. And once there is a rea-

sonable basis for concluding that there was negli- —

gence which caused the injury, -it is irrelevant that

fair minded men might reach different conclusions.

In such cases the trial judge is not justified to sub-

stitute his conclusions for those of the jury. Lavender

v. Kurn, supra, and Ellis v. Union Pacific R.R.,

supra, 329 U.S. at page 653, 67 S.Ct. 598, 91 L.Ed.

' 572. Bearing these principles in mind and applying

them to our case, we believe there was a reasonable

basis for concluding there was negligence which

caused the injury, hence the trial court properly left

it to the jury to say whether defendant was guilty of

negligence in placing the caboose ahead of the pusher

engine and whether plaintiff’s injuries resulted in

whole or in part from such negligence.”

There is ample evidence in the record to aoe the

jury’s verdicts.

The defendant also objects to the trial — refusal —

to give Defendant’s Instruction No. 9, as follows:

v

—i18a—

“The burden is upon each of the plaintiffs to prove

- by the preponderance or greater weight of the evi-

- dence that prior to the time he contracted lead poison-

ing the defendant had actual knowledge, or in the

exercise of reasonable care should have known that

the cars upon which such plaintiff was engaged in

burning, or some of them, had. been ‘painted with a

. substance containing lead. in such quantities that such .

plaintiff, or any other employee similarly engaged was

reasonably likely to contract lead poisoning while

burning or stripping such car or cars. If any plain-

tiff has failed to sustain such burden of proof, your

verdict must be for the defendant and against such

plainti

Defendant? Instruction No. 9isa peremptory instruction |

since it concludes: “If any plaintiff has failed to sustain .

such burden of proof, your verdict must be for the defen-

dant and against such. plaintiff.”

~ In a recent case, Cohn v. Petroleum H eat é Power Co. <

44 Tl. App. 2d 23, the court said:

“Instruction 17 is objected to as being peremptory

in that it states that if the jury believes that the

defendant has proved any: of five enumerated de-

fenses a verdict shall be found for the defendant.

Such peremptory instruction comes from the bench

and is afforded an aura of importance and credibility

that the court should never intend to convey. See 8

DePaul Law Review 141, 143, This kind of instruc-

tion has been heartily. condemned in the’ Lllinois

courts, but is often not found to be reversible error.

The courts will only reverse on this ground where an‘

undue number or an. inordinate amount of these in-

structions have been given or it appears that the case —

of the opposing party has been severely compromised

or misstated. [Citing cases.]”

Had the trial court given the instruction in question it

would not have been reversible error, although the form ~

*

eid adam? gener pe cae ot

a

of the instruction is highly improper and has been re-

peatedly condemned by the courts. The failure of the

trial court to give the proffered instruction was not re- ©

versible error. It is not, nor has it ever been the law that

an instruction in the form in which the instruction in

question was proffered should be given nor that failure

to give an instruction repeatedly condemned by the courts

could in any case be reversible error. While it is true

that the plaintiff is entitled to an instruction stating his _

theory of the case, he must proffer an instruction which is

proper in form. In the case before us the defendant failed

to do this. The defendant relies on the Crowley case to

support its contention. The instruction in that case was.

not peremptory and the case is not applicable. The giving

of instructions is to enlighten the jury and not to create |

confusion. The jury was adequately instructed.

The delecilias also complains of the following instruc-

' tion given by the trial court at the request of the plain-

tiffs :

“The evidence in this case fails to din pe ere

negligence. on the part of any of the plaintiffs, and’

therefore, you should not consider the question of

eontributory negligence raised by the defendant.”

Before us the defendant argues that there was some

evidence of negligence on the part of the plaintiffs; that

under the rule laid down in. Wilkerson v. McCarthy, 336_

U.S: 53, and other cases, it has been held that only where

there is a complete absence of probative facts may the

issue of negligence or contributory negligence be taken

from the jury, and that in the instant case there was such

-evidence inasmuch as the plaintiffs, knowing that they |

were being made ill by the paint removal, persisted in re-

maining on the nd

In Moore v. Atchison, T. & S.-F. Ry. Co., 28 Ill. App.

2d° 340, the court held that the burden of proof of con-

tributory negligence in F.E.L.A. cases is on the defen-

dant. [Citing Norfolk & Western Ry. Co. v. Earnest, 229

US. 114, 120.] The court said:

. there must be an heaton ails for a ‘finding

of contributory negligence. Goodman v. Chicago B. & —

_ Q. R. Co., 289 Ill. App. 320, 7. N.E. 2d 393, cert. de-

nied 303 U.S. 640; Williamson v. Wabash R. Co., 355

Mo. 248, 196 S.W.2d 129. In F.E.L.A. cases there is

a presumption that the deceased was engaged in the

performance of his duty and exercised due care for

his own safety at the time of his death. Tennant v.

Peoria & P. U. Ry Co., 321 US. 29, 34; Stanford v.

Pennsylvania R. Co., 171 Fed. 2d 632, 635; "hicage

& N.W. Ry Co. v. Grauel, 160 Fed.2d 820, 825. Defen-

dant offered no evidence to rebut that presumption.”

In F.E.L.A. cases assumption of risks of employment

cannot be raised as a defense by defendant employer. In

Illinois cases [not F.E.L.A: cases] the courts have held

that the employee assumes such risks as are incident to his

employment. In C. é E. I. R. R. Co. v. Heerey, 203 Ill. 492,

_the rule is stated as follows:

“It is the settled law that the servant, when he engages

in the employment, does so in view of the risks inci-

dent to it; that he will be presumed to have contract-

ed with reference to such risks and assumed the same,

and that if he receives an injury resulting from the |

incidental risks and hazards ordinarily connected with

the employment he cannot hold the master responsible.

. The rule also applies i in any case where the ser-

vant, during the course of his employment, becomes

aware of a defect but voluntarily continues in the

employment without objection.”

— 2la —

- The court cited numerous Illinois cases. In Chicago: and , |

Eastern Illinois Railroad Co. v. Geary, 110 Ill. 383, it is

stated that:

“. . . when an employee, .after having the opportunity

to become acquainted with the risks of his situation,

accepts them, he cannot complain ‘f he is subsequently

injured by such exposure.”

In Chicago Drop Forge and Foundry Co. v. VanDam, 149

Ill. 337, the court held that the servant ‘will be regarded as

voluntarily incurring the risk resulting from the use of

defective machinery if its defects are as well known to him

as. to the master.

In Mumma v. Reading Company, 247 F. Supp. 252, the

court discussed at considerable length the distinction be-

tween contributory negligence and assumption of risk and

pointed out that it is necessary to consider the question

since in F.E.L.A. cases contributory negligence, if proved,

may reduce the amount of damages which can be allowed

by the jury, while assumption of risk is no defense what-

soever. In its opinion the court cited and quoted from

Schlemmer v. Buffalo, R. é P. B. Co., 220 U.S. 590, 595-

596, which stated:

“* * * While, as was said in the case when here be- .

fore, assumption of risk sometimes shades into negli-

gence as commonly understood, there is, nevertheless,

a practical and clear distinction between the two. In

the absence of statute taking away the defense, or

such obvious dangers that no ordinarily prudent per-

son would incur them, an employee is held to assume

the risk of the ordinary dangers of the occupation

into which he is about :to enter, and also those risks

and dangers which are known, or are so plainly ob-

servable that the employee may be presumed: to know

of them, and if he continues in the master’s ‘employ

without objection, he takes upon himself the risk of

— 22a —

injury from such defects. Choctaw, O. dé G. R. v. Mc-

Dade (191 U.S. 64, 67, 68, 48 L.. Ed. 96, 100, 101, 24

Sup. Ct. Rep. 24), and former cases in this court

. therein cited.

“Contributory negligence on the other hand, is the

omission of the employee to use those precautions for

chis own safety which anid prudence requires.

* 8 89

After further discussing the distinction between contribu-

tory negligence and assumption of risk the court in the

Mumma case stated:

. the interest which plaintiff was seeking to advance |

was his economic security. He was doing nothing more

than what his duties called upon him to do. To avoid

the risk he would have been compelled to quit his job -

and this the law does not demand. Here, plaintiff

must be declared free of contributory negligence as

‘a matter of law because the risk of: harm itself was

not so imminent, nor was the likelihood of injury so ~

great that, in view of the interest plaintiff sought to |

advance, no prudent man would face it.” ,

The Court further said: ..

. “We think that plaintiff’s conduct here, which consisted

only of doing his normal work despite a potentially

dangerous situation arising from defendant’s negli-

gence, was nothing more than classic assumption of

risk, that is, mere “ * * voluntary exposure to an

obvious or known danger which negates liability,* * *’

Pritchard v. Liggett & Myers Tobacco Company, 350

F.2d 479 (1965). [The court also called attention to

the fact that assumption of risk does not, of course,

negate liability in F.E.L.A. cases.] To. hold’ otherwise

would be to thwart the purpose of the 1939 Amend-

ment, and would permit the doctrine of assumption of

risk to throw aside its Congressionally given shroud

_. and walk the earth again in the clothing of contribu-

tory negligence. . . .”

In the instant case the actions of the plaintiffs were an

assumption of the risks of employment and did not con-

' stitute contributory negligence. Defendant argues, how-

ever, that plaintiffs were contributorily negligent because,

despite kifowledge of the smoke hazard from the lead

paint, they continued on in their employment. The resolu-

tion of this issue depends upon. the duty placed upon an —

employee when he discovers that his place of employment |

is unsafe. Plaintiffs informed the foreman of their plight

and, since the foreman is an agent of the defendant, this - |

is notice to the defendant. Upon their giving: notice the

foreman threatened to have them “fired.” Since the dan- |

gerous condition was not remedied, the plaintiffs were ©

confronted with three possible alternatives: |

1) Plaintiffs could quit their jobs and find other em-

ployment. However, they are not required.to do this if the

employer fails to provide a safe place to work. Mumma v.

Reading Company, 247 F. Supp. 252.

. 2) Plaintiffs could have transferred. to another job

with the same employer where they would not be exposed

to the fumes. However, according to the evidence they

would have had to take a cut in pay. .

3) They could have purchased their own masks. There

is no evidence that the plaintiffs were aware of the avail-

-- ability to them of masks. However, even if they were so.

aware, the negligence of an employer in failing to provide

- @ safe place to work should not operate as a requirement

- to an employee to purchase his own safety equipment,

especially where it is' probable that the er cannot

afford such equipment.* ;

* Satisfactory masks ‘were not furnished to the em-

ployees by the employer.

— 24a —

Defendant places great reliance on the Crowley case.

That case, in which the employee was held to be contribu-

torily negligent as a matter of law, is distinguishable from

the instant case in two important respects: 1) The court

' states on page 485 that:. .

“Substances which will cause a dermatitis in one in-

dividual may not cause it in another; individual re- -

sistance varies. The extérnal factors involved in con-

tact dermatitis are the extent and frequency of the

contact with the irritating substances and the time of

individual exposure; personal factors are the suscep-

_ tibility of the individual, the lightness of his com-

plexion, his age as affecting his capacity to harden .

resistance to a new exposure, or his loss of resistance

to a previously nonirritating exposure and personal

cleanliness in avoiding unnecessary contact with the. ~

irritant and in removing the contacted substance by

promptly washing the exposed parts of the body.”

Thus, it seems clear that an employer can provide a safe -

"place to work for the ordinary individual employee and

yet an employee can still contract the dermatitis.

2) In Crowley the employer apparently provided basins

in which to wash off the irritating substance, with which

plaintiff failed to avail himself. Crowley also failed to use —

creams supplied by the employer. In finding Crowley con-

tributorily negligent as a matter of law the court said, at

page 906:

.

“We are satisfied that when Crowley ‘tewtinte re-

mained in contact with the source of his ee .

disease and failed to use the means provided for

tection against the hazards, he was guilty of ‘atin

tory negligence as a matter.of law.” Be seed sup-

plied.)

Generalizing, this case supports the rale that an employer

is bound to use due care in providing his- employees with |

— 54 —

a safe place to work; and if the employer provides safety

precautions of which the employee has failed to take ad-

vantage, then that employee is contributorily negligent as

a matter of law. There were no safety precautions in the .

_instant case.-We conclude that as a matter of law the

plaintiffs were. not contributorily negligent and the -in-

struction was properly given.- .

The defendant also raises the point that verdicts and

judgments were excessive. We have set out in detail ‘the

injuries and the amounts of the judgments. In Tllinois

there are conflicting decisions with reference to the right

of a reviewing court in F.E.LA. cases to decide that the

finding of the jury on the question ‘of damages is against

the manifest weight of the evidence. In Bowman v. Illinois

Central R.R. Co., 11 Ilkk 2d 186, the court held that an

Illinois reviewing court has no right to reweigh conflicting

evidence and remand an F.E.L.A. case because it finds the

jury verdict to be against the weight of the evidence. In

- Jensen v. Elgin, J. d E. Ry. Co., 15 Til. App.’ 2d 559, the

‘ court, on rehearing, held that in F.E.L.A. cases the court

does not have the right that the finding of the jury on

_ damages is against the manifest weight of the evidence.

It is also so held in Coleman v. Gulf, M. d@ QO. R. Co., 17

Ill. App. 2d 220, and in Pennell v. Baltimore & O. R. Co.,

-13 Il. App. 2d 433. In Crowley v. Elgin, J. d E. Ry. Co.,

1 Ill. App. 2d 481, the court entered: a remittitur in an

F.E.L.A. case. This was before the decision in Bowman.

The opinion in the Jensen case was written by the same

judge who wrote the opinion in the Crowley case. In Smith:

v. Illinois Cent..R. Co:, 29 Tl. App. 2d 168, the Fourth Dis-

trict of the Appéllate Court; after the Bowman decision

and without referring to it, held that in F.E.L.A. cases a

state court of review has the right to review and weigh the

evidence in cases’ where it is oe that the verdict was

excessive.

_ 26a—

In the instant case, considering the i injuries suffered by

_ the plaintiffs and the amounts of the judgments, the ver-

dicts aré not. excessive, even if we ‘were to consider that

_- the reviewing court ‘could properly review this question in

an F.E.L.A. ease. In 2 LLP. Appéal and Error § 782, it is

stated : )

“Where the dunia in a case are not encase :

- of exact computation, but must be’ determined from

the testimony of the witnesses and the opinions ex-

pressed by them, an award of. damages by a jury will.

not be disturbed on review on the ground that it is

excessive unless it is clearly the result of passion,

prejudice; or error, or manifestly contrary to the

preponderance of the evidence. oa

‘.“In other words, the reviewing court will not dis-.

. Ys turb_ ah award of damages unless the verdict is so

‘excessive or palpably excessive as to indicate that the

. jury were moved by prejudice, passion, or improper

motive, or so flagrantly outrageous and extravagant. .

as to strike everyone with the enormity and injustice

of it, or unless the award is not supported by the

_ facts in the retord and. the court is convinced. that

_ itis excessive, or it is apparent from the record ‘that

the damages. assessed -are out of due proportion to -

— < the jury and the ‘loss. yromhannely resulting . there-

‘’ ‘from. . Pa

In ‘Harney v. guntiory District, $60 fore 54 the evans

Court of ban said : '

me . The amount of damages to be recoveréd is a

NETH. of. fact. to be.determined by. the -jury, (City

~ of Salem v. Harvey,:129 Til. 344,) and this court has

» Often said that a judgment will not be reversed on °

» the: ground that the damages- are excessive unless:

q \— they are palpably and clearly the result of passion

- OF prejudice or one sontrgry to the preponder-.

. ance of the evidence...

Lae

na |

In Holsman v. Darling State Street Corp., 6m App. 2d

517, the court said:

. We have repeatedly held that damages awarded

. ‘a plaintiff in a personal injury case will not be

set aside unless so palpably. excessive as to indicate

passion or prejudice on the part of the jury. [Citing

cases. od ;

‘ We are not passing upon the question as. to -whether

or not this court would have the power in an F.E.L.A.

case -to consider the alleged excessiveness of the verdict

and to reverse or to enter a remittitur. If we held that

the power of a reviewing court is limited, as set out in

the cases heretofore cited, then the judgment must stand.

If, on the other hand, we were to hold that this court had

the power to determine whether or not the judgments are

excessive, under the record in this case, we would be com-

_ pelled to hold that they are not. = cena of the

‘'\ Cireuit Court are affirmed.

, Snide,

Davoxss, J., concurs ;

Ewouss, | > me dissenting :

It seems to me that the majority have failed to iste

even-handedly the same principles to both sides of this

ease in reviewing the evidence relating to negligence. My.

colleagues have been able to perceive evidence of. de-

-fendant’s negligence to support the verdict, but are un-

willing to acknowledge the existence of evidence that con-

tributory negligence played ‘any part at all, even the

slightest, in producing the injuries. ‘Thus, plaintiffs could

‘properly “get to-the jury” but defendant could not. On

‘the record before us, I cannot agree with this one-sided

- use of the jury’s fact-finding function.

= “Son

As to defendant’s negligence, there was no evidence

whatsoever that defendant knew of the presence of lead

paint in the cars which were being dismantled. The record

leaves no room for disagreement on this point, so it must ©

be in the light of constructive notice that the majority

make the flat statement that “defendant was given notice

that there was lead paint on the 31,000 series cars.” And

this must turn, then, on whether defendant, by the exer-

cise of ordinary care, should have known of the existence

of lead in the paint, on the cars being stripped. Proof on

this issue must be found in the testimony of the plaintiffs

themselves or of the other witnesses on their behalf.

- I shall consider the other witnesses first. Plaintiffs

called Axel Johnson, who testified that he had worked for

defendant until his retirement on February 1, 1964; that

he had been a car foreman in the area where plaintiffs

~~ worked in the fall of 1955 and was familiar with the strip-

ping operation then being performed on the 31,000 series

cars. He then testified: “{I]n my opinio the surface of

the material contained some kind of lead.” At that ‘point

in the trial all the plaintiffs had testified, and.it may be-

- noted in passing how desperately weak they must have

considered their own case to be (on the point of defen-

. dant’s knowledge of the presence of lead paint). when they

decided it was necessary to introduce the opinion testi-

mony of this witness; for, on cross-examination, he com- —

pletely demolished the supporting structure of: his own

direct testimony by testifying’ that his opinion as to the

presence of lead was based on the fact that plaintiffs “got

sick from it.”

The same witness testified further that he had Sen

around those cars” for the railroad for 44 years and. in

all that time had never known of any cases of lead poison-

‘ing other than those of plaintiffs. Defendant’s industrial :

— 29a —

physician, called as a witness for plaintiffs, testified to the

same effect covering his period of knowledge, commenc-

ing in 1945.

In their work plaintiffs wore burner’s canvas jackets, -

leather gloves and leather leggings. They also wore gog-

‘gles to protect their eyes, but did not use any respiratory

masks. The work was performed in the open air, and

over a period of 44 years no workmen except plaintiffs

had contracted lead poisoning. Thus; going back to 1919

_ or 1920, there had been a period of at least 18 years, and

undoubtedly much longer (since the work was done on

old’cars being scrapped or rebuilt), when all of the cars

which were dismantled had been built prior to 1938, Since

the 31,000 series cars on which plaintiffs worked were

‘ built in 1937, this is an. important background against

which to consider the testimony ‘of plaintiffs’ industrial

hygiene and safety expert (Kirschner), again on the ques-

tion of whether defendant,’ in the exercise of ordinary

care, should have known of the existence of lead paint.

The witness summed up his own evidence when he testi-

fied: “All I’m saying now is that as an expert I would

guess that there was-a greater likelihood that railroad

cars painted in 1937 had some red lead than railroad cars

. that were. painted later.”

In my opinion, this does not satisfy even the “any evi-

dence” rule on the issue in question. The standard of or-

dinary care involved in this case is that of defendant’s

employees who were railroad laymen, whereas the wit-

ness spoke “as an expert.” Even in that. capacity his

opinion was couched in the form, “I would guess.” And

then only as to 8 “ereater likelihood” of the existence of

“some red lead.” © 3

.

The same expert testified that the health problems in-

volved in the cutting of lead-painted steel with acetylene

_ torches is*known not only to experts but also to lay peo- ~

‘ple in the industry. There is nothing in the record on

which the majority may base their apparent conélusion

that there is “common knowledge” of injury from inhal- —

ing the fumes of burning ordinary paint. As a matter

of fact, the 44-year record of illness-free paint burning

in this case belies that statement. Our only source of

knowledge on this subject is the testimony of plaintiffs’

expert,.and he meticulously made it clear that the danger

about: which he was testifying was limited to the burning

of paint containing lead.? With this proposition defen-

1See 222 E. Chestnut St. Corp. v. Bd. of Appeals, 14 Ill.

2d 190; 193-194, in which the court found it to be “com-

mon knowledge”. that: automobiles produce fumes which

can be injurious to health under some conditions, but re-

fused to take judicial notice of the presence of such con-

ditions in the absence of proof by an expert witness.

* Included in his testimony was the following:

If there are no hazards of dust or gas.or fumes the

men don’t. wear masks. The question is not whether

they are using an acetylene torch, the question as to

whether or not masks or respirators or air equip-

ment.is advisable depends upon whether or not there

is -lead in the paint on the metallic surface. It was

necessary for me to perform tests to determine .

whether there was lead in the paint samples and the

piece of rod that was submitted to me for analysis.

I wouldn’t say that mere visual inspection of the ©

_ piece of rod or paint samples didn’t indicate any way

or the other whether there was lead in those samples.

Not. all paint contains red lead. Not all orange paint

contains red lead. Red lead is still being used as a

‘ primer on steel and for structures such as the one

that was indicated. It’s partially true that other paint

having the same color that is used for the same pur.

pose does not contain lead at all. It’s not entirely

true because it’s not exactly the same purpose. [Em-

phasis supplied. }

—3la—

dant is in complete agreement. The basic difficulties here,

however, and, I believe, the sources of great confusion

throughout this case, are (1) that the burning of non-

lead paint has no probative value to’ plaintiffs’ case in

establishing negligence on: the part of. defendant, and (2)

that the well-known injurious properties of fumes from

burning lead paint have nothing to do with that issue

either, unless it also be shown that defendant knew.that

lead paint was present in plaintiffs’ burning operation. —

. Plaintiffs’ supporting witnesses having utterly failed to

satisfy plaintiffs’ burden on this issue, we must tuyn to

- the testimony of plaintiffs themselves,

As related in the majority opinion, the cars plaintiffs

started working on in October, 1955 were painted black, —

with an undercoat of red-orange which the men called

‘ “lead paint.” Del Raso testified, “There was-.some orange

lead paint on the body bolsters * * * .” Benson said, |

“We would call it lead.” Dalpiaz testified, “We always

called it ‘lead paint,’ ” When presented through the first

witness, this testimony was admitted over defendant’s ob-

jection. Plaintiffs apparently considered it highly impor-

tant for them to prove that while they were working on

the job they recognized the red-orange paint as contain-

ing lead. My colleagues also seem to attach great weight

~ to this fact. So do I. But of equal significance is the fact

‘that, so far as the record shows, plaintiffs never talked

about the lead paint to anyone except themselves. They

‘did not mention it to their now deceased foreman when

complaining about simoke from the paint. And they did

not even mention it to their own doctors to aaa they

went for treatment!

The majority opinion ala that if the foreman had

“talked with any of the men employed in stripping the

31,000 series he would have been put on notice of the fact.

— 32a—

that there was a great likelihood that lead:paint was on

those cars.” Indulging in the hypothesis of such a conver- .

sation is unnecessary on this record because plaintiffs

testified that they did have repeated conversations with

. foreman Koleto about the fumes and smoke, and there is ©

no testimony whatsoever that they ever mentioned the

_ presence of lead paint—a fact which they’ had been aware.

of (according to their. testimony) as early as the latter

‘part of October. This becomes all the more important

when it is realized that all of the plaintiffs had done a

substantial amount of car burning»prior to October, dur-

‘ing all of which earlier operations they would have been

worms on paint which did not contain red lead.’

Farther testimony of plaintiffs is of interest when con-

sidered against the background of their amended com-

plaint. There it is alleged that they “were compelled” to

work at thé job of car stripping where they inhaled lead

paint fumes; and that defendant’s negligence lay in “com-

pelling” plaintiffs to work at this job when, by the exer-

cise of ordinary care, it should have known that they —

would contract lead poisoning. Plaintiffs testified that

they were qualified as carmen under their union contract

and that, with sufficient seniority, they could decide

whether they wanted to work in the shop or on the car-

burning job. It is undisputed that all plaintiffs had the

seniority to take them off. the burning job at any time

they might have elected during the last months of 1955

and early 1956; and it is also undisputed that there were

*Del Raso hs ones as a car burner off and on since

1951 and steadily since 1954; Benson part of the time in

1952 and 1953 and regularly ‘after the first week in Octo-

ber 1955; Sybert regularly since early in the year of

1955; and Dalpiaz off and on from 1952 and — start-

ing in July of 1955.

t>

en,

vacancies in the shop which could have been theirs upon

demand during®all that period. The differential in pay

was only five cents per hour, which, at plaintiffs’ ‘scale,

| amounted to only 214%, or slightly less.

When they returned to work after their illnesses, all of

the plaintiffs exercised their union right to opt for a shop

job. As explained by Dalpiaz: “If you have seniority and

certain jobs come upOn bulletin you can have. the job if

you have enough seniority and you bid on it. I haven’t

gone back as a burner at any time since I went back.”

. There is no claim that this right to job transfer was not

available to plaintiffs throughout the critical months, and

yet the record discloses that none of the plaintiffs ever

‘bid for a shop job during that period. Nothing in the .

alleged conversations with the deceased foreman raises

any question on this score.:

Considering, then, all the evidence ictonducel. by plain-

tiffs to meet their burden of proof on the proposition that

defendant, by the exercise of ordinary care, should have © -

known of the presence of lead paint in the burning opera-

tion (Urie v. Thompson, 337 U.S. 163), it seems to me

that the proof is either wholly lacking or, at best, very

slim indeed. Assuming that the record does‘contain suf-

ficient evidence to have permitted the case to go to the

jury on this point, it is perfectly clear that all such proof

originated with plaintiffs themselves. They were the only

ones who knew of the presence of what they thought was

lead paint, and it was only through them that this knowl-

edge, somehow or other, without testimonial explanation,

was transmitted so that the defendant should have known

also. Are not the plaintiffs then faced with the corollary |

propositions that, knowing of the existence of the lead

paint, they also knew (by the common knowledge’ of lay-

men; as testified to by their own expert) of the danger of

: en

health from inhaling smoke and fumes therefrom; that

it then became their duty to avoid exposure to such dan-

ger through the exercise of ordinary care; that it was

admittedly within their power to avoid this dangerous ex-

posure by bidding on back shop jobs to which their union

seniority entitled them; and that they did not do so. I:

believe the situation thus presents stronger evidence of

contributory negligence than the evidence of defendant’s

negligence which was permitted to go to the jury. I be-

lieve, therefore, that the trial court erred in removing the

issue of contributory negligence from the jury’s consid-

eration. |

Perhaps the jury might have decided that the 214%

pay differenfial, small as it is, was too much for the

plaintiffs to have given up, through the exercise of or-

dinary prudence, in exchange for a safer job. Perhaps

the jury would have reached the same verdict it did. We

cannot know, but, of course, that is not the question which

is presénted to us. The determination on the issue of

contributory negligence is one to be made neither by us.

nor by the trial court, but by the jury alone, unless “there

is a complete absence of probative facts.” Lavender v.

Kurn, 327 U.S. 645, 653. And this rule applies to all neg-

- ligence alike, whether that of defendants or plaintiffs,

however often its application to the conduct -of a plain-

_ tiff seems to be overlooked or ighored, as I believe it has

been in this case, without deferring to the exclusive legis-

lative authority to repeal the defense of contributory neg-

ligence. ’ a

| There are many decisions declaring this two-way prin-

ciple. One from which the majority opinion has quoted at

length is Mumma v. Reading Company, 247 F. Supp. 252,

254 (E.D., Penn., 1965). In that case there was two sim-

ilar accidents covered by separate counts. As to the first ©

—_— —

accident, the court decided that there was no evidence of —

contributory negligence and took that issue from the jury.

_As to the second accident, however, the court recognized *

that there was some such evidence, “although it was ex-

tremely meager,” and felt itself bound, therefore, to ap-

ply the rule that “the sufficiency of. the evidence to take

the issue of contributory negligence to the jury is to be

tested by the same standards that are used to test the

sufficiency of plaintiff’s evidence on the issues of negli-

gence and proximate cause.” See also Schulz v. Pennsyl-

vania R. Co., 350 U.S. 523; Wilkerson v. McCarthy, 336

U.S. 53, 63; and Justice v. Pennsylvania R. Co., 41 II.

App.-2d 352, 357-358, and cases there cited. In the Justice

case, the court concluded: “Under the facts in this case

it is not apparent that there was no possible basis to find

some contributory negligence. Thus, it was not a question

of law for the court and the instruction (on contributory

negligence) should have been given.” (Page 358.) It

should be remembered also that the minimum of evidence

required as tending to show contributory negligence un-

der the applicable “any evidence” rule, becomes further

minimjzed because the F.E.L.A. test of the sufficiency of

such evidence is only whether it played any part, no mat-

ter how small, in actually bringing about or ‘causing: the

plaintiff’s injuries. Page v. St. Louis Southwestern Ry. -

Co., 349 F. 2d 820 (5th Cir., 1965).

The principal case relied upon by the majority is the

Pennsylvania nisi prius opinion in Mumma v. Reading

Company, 247 F. Supp. 252 (E.D., Penn., 1965). I be-

lieve that reliance to be misplaced for a number of rea-

sons. As I have mentioned, the Mumma case involved

two injuries to the same plaintiff from falling on icy

_ walkways while his boots were soaked with oil which de-

fendant had negligently permitted to remain standing in

—36a—

the work area. The court let the issue of contributory

. negligence go to-the jury as to one of the. accidents but

not as to the other. Meager evidence of contributory neg-

ligence was considered sufficient for the purpose under

one count, but the court stated flatly as to the other count: .

“The record is utterly barren even of a suggestion that

the plaintiff could have acted otherwise than he did, short

of stopping work entirely.” (Page 254.) This, of course,

is by no means true in the case before us, so Mumma is ~

distinguishable at the outset. Furthermore, it is only be-

cause of his preliminary decision that there was no evi-

dence of contributory negligence that the judge in Mumma

was able to find assumption of risk based upon the author-

ities cited in his opinion. The majority here overlook that

important fact, and also overlook the vital language of

the other opinions cited in Mwmma which, under the facts

of our case, make them applicable to my conclusion rather -

than to theirs; e.g., Pritchard v. Liggett & Myers, 350 F.

2d 479, 484-486 (3rd Cir., 1965). ;

As another example, the judge in Mumma, and the ma-

jority here, quote a definition of assumed risk from the

opinion in Schlemmer v. Buffalo, R. d P. R. Co., 220

U.S. 590, 595-596. I shall not quote the whole passage

again, but the first part of the key sentence is very i im-

portant. It‘states: _

In the absence of statute tahieg away the defense, or -

such obvious dangers that no ordinarily prudent per-

son would incur them, an employee is held to assume

the risk of the ordinary dangers of the occupation

into _ he is about to enter * * °. (Emphasis sup-

plied.

Thus the Supreme Cout set down two preliminary con-

siderations which would remove a case from application

of the assumed risk doctrine. First was statutory. removal

— “ae

which had not been enacted at the time of Schlemmer.

Second was | the existence of contributory negligence—

failure to meet the standard of the “ordinarily prudent

_ person.” Both these considerations were open to the judge

in Mumma because there was absolutely no evidence of

contributory negligence and the plaintiff there “would

have been compelled to quit his job” (page 257) in order, '

to avoid the risk. Not so here on either point. |

After the Supreme Court’s opinion in Schlemmer, the

Congress amended the statute to remove assumed risk as

a defense, but it did not eliminate the defense of contrib-

utory negligence. -I consider this highly significant. .The

result is that even if the same facts might, in a given case,

- constitute both assumed risk and contributory negligence, .

the defense of contributory negligence would still be avail-

able to the defendant. This proposition is set forth in

Restatement, Second, Torts § 496 A.d. i in comment on the

_ principle of assumption: of risk:

Relation to contributory sidlionaes. The same conduct

on the part of the plaintiff may thus amount to both as-

sumption of risk and contributory negligence, and may

subject him to: both defenses. His conduct in accepting

the risk may be unreasonable and thus negligent, because

the danger is out of all proportion to the interest he is

seeking to advance, * * *,

_* © * In theory the distinction between the two is that

assumption of risk rests upon the voluntary consent of

the plaintiff to encounter the risk and take his chances,

while contributory negligence rests upon his failure to

exercise the care of a reasonable man for his own pro-

tection." Where the plaintiff voluntarily consents to take

an unreasonable chance, there may obviously be both.

[Emphasis supplied]

I come, then, to the question, ‘of whether there is any

authority to support my belief that there is evidence that

plaintiffs did not exercise ordinary care for their own -

safety. And there is. The case of Crowley v. Elgin, J. é .

E. Ry. Co., I Il. App. 2d 481, is directly in-point. This

’ court held in that case that Crowley’s persistence in work-.

ing at a job which was causing his illness, when his union.

seniority entitled him to transfer to a safer, job, consti-

_ tuted contributory negligence as’ 4 matter of law.

In the Crowley case there were three roundhouse em- .

ployees who sued under F.E.L.A. for occupational derma-

titis acquired through contact with diesel oil inthe ser-

vicing of defendant’s locomotives. After the source of the

° plaintiffs’ skin trouble had been medically identified, plain-

tiffs Kern and Criche asserted their union seniority rights

to accomplish transfer to a back shop job removed from

the handling of diesel oil. Crowley did not. He insisted

on continuing in his roundhouse job, although within a

very short time, he, too, could have Gensnded, ‘such a

transfer to ‘the back shop.*

. Judgments in favor of Kern sind Criche were affirmed

' by this court but with remittiturs because they were in-

.. sufficiently. supported by proof of monetary damage. The

judgment in favor of Crowley was also affirmed but with

a much larger remittitur based upon application of the

contributory negligence principle, this court having found

that the evidence showed him to have been guilty of con-

tributory meee | as a matter of law.

* The opinion does not. disclose the wage differential be-

-tween the. two jobs, but it would seem probable from.

Crowley’s persistence in the face'of illness that the round-

house job, like the burning job in the instant case, carried

a somewhat higher rate of pay. |

‘The union agreement in the Crowley case was similar

to, if. not identical- with, the one in the case before us. - .

“Crowley could not take another machinist’s position by

displacing another man. He could only bid in on a va-.

‘ eancy. Similarly, the defendant could not transfer him

without his consent or refuse .to allow him to work at

any job to which his seniority entitled him.” (Page .488.)

In concluding its opinion as to Crowley, this court said:

On February 19, 1948, he returned to the job in the

a; roundhouse, which he knew was the cause of his con-

dition “and persisted i in working there despite the fact

‘that there have been vacancies in the back shop upon

which he could have bid successfully by virtue of ‘his

‘seniority, The folly of his course -of conduct is made —

clear by contrasting his case with those of Kern and

Criche. They transferred to jobs in the back shop.

We are: satisfied that when. Crowley knowing’ re-

mained in contact with.the source of his occupational

disease and failed to tise the means provided for ‘pro-

tection against the hazards, he was guilty of coiitrib-

utory negligence as a matter of law.* [Pp. 505°506.]

-My colleagues attempt to distinguish Crowley on two

grounds. First, they say, “an employer can -provide a

safe place to work for the ordinary individual . employee

and yet an employee can still contract the dermatiti

Certainly, when it came to the decision in the Crowley

case, the question of individual sensitivities ‘played no

part. And I fail to. see any relevance to the case now be-

_ fore us. .

.The second ground of attempted distinction has more’ -

apparent basis but fails completely upon close examina-

tion. Pages 505 and 506 of the Crowley opinion make it

abundantly clear that the reason for the court’s. finding

of contributory negligence as a matter of law was Créw-

i

~

__ ley’s stubborn refusal to. transfer to a safer job after he

had learned the cause of his dermatitis. To be sure, in

‘Summing up, as set forth in the quotation above, the court

- mentions, almost parenthetically, that Crowley had also

“failed to use the means provided for protection against

the hazards.” So the majority in our case grasp at those.

words and declare the case distinguished, conchiding very.

-broadly, indeed, that “if the employer provides safety

precautions of which the employee has failed to take ad-

vantage, then that employee is contributorily negligent

as a matter of law. There were no safety sti in

. the instant case.” :

‘Now, I would'not go near so far in declaring contrib-"

utory négligence as a matter of law. And the Crowley.

opinion, I am certain, makes no such pronouncement. The

“safety precautions” referred to in the Crowley case con-

sisted of washing facilities and vias creams. The

opinion states :

None of the plaintiffs. used the washing facilities

available to them prior to the outbreak of their der-

* matitis. Crowley washed only at the noon hour. Kern -

did not wash with soap and water, but used kerosene ——

and waste-to clean his hands, a practice which Dr.

Schwartz testified was more likely to cause derma-

' titis than any other. Criche used kerosene and oil to

_ clean his hands, but he never washed himself at work.

‘ After the protective creams and ointment and the

detergent and scrubbing agent were supplied, Crow-

ley used the protective ereams only two days, and

used the detergent but not the scrubber. Kern used

the protective creams only a dozen times and he never

used the corn-meal scrubber. Criche has never used

these preventatives. (Pp. 497-498.)

It therefore appears that, while all three plaintiffs essen-

tially failed to take advantage of these facilities, Crowley

dia: just about as well as ‘ee heb Yet the other two.

plaintiffs were.not found to have been contributorily neg-

ligent and Crowley was! This leads to the inescapable

conclusion that the only critical evidence on the issue of

- negligence was Crowley’s failure to bid for a back shop

job when he had that option—the same option which was

available to plaintiffs in the case at bar. But with what

contrary results! This court found Crowley guilty of neg-

ligence as a matter of law, whereas the majority in the

present case skip clear across the broad area occupied —

by questions of fact, to “conclude that as a matter of law

the . plaintiffs were not eontributorily negligent.”

I would place this ease in the extensive middle craend:

I maintain that existing law properly applied to the evi-

* dence in this record commands that the jury determine

the question of negligence as to both plaintiffs. and de-

fendant. In my opinion the trial court erred in preempt-

ing the jury’s function on the issue of contributory neg-.

ligence, .as to both plaintiffs and defendant.: In my opin-

ion the trial court erred in preempting the jury’s function

on the issue of contributory negligence, and we compound »

the error by not correcting it. ~——~~

Finally, I must also dissent from the Sioa refusal

to pass upon the question as to whether we have the. .

. power to review the issue of excessiveness of verdicts in

F.E.L.A. cases. I believe we do. Smith v. Illinois Cent.

R. Co., 29 Ti App. 2d 168; Deen'v. Gulf, Colo. d 8. F.

Ry. Co., 353 U.S. 925; Gulf, Colo. d S.F. Ry. Co. v. Deen,

312 S.W. 2d 933, 942, cert. den. 358 U.S. 874; Rogers v:

Missouri Pac. R.Co., 352 U.S. 500; Rivera v. ‘Atchison,

T. 48. F. Ry. Co., 299 P. 2d 1090, 1092-1093; 79 A.L.R. .

“2d 553. I do not consider Bowman v. Illinois Central R.

R. Co., 11 Ti 2d 186, to be in point on this question.

° : ; - LS

' Under the instructions given to the jury in this case,

: I would not be able to say that the damages awarded were

unreasonable and excessive. Under instructions including

the issue of contributory negligence, the. wee might be —

somewhat different. — 7

ae I would reverse and remand for a new trial.

ILLINOIS APPELLATE COURT

AFFIRMING ORDER

The judgments of the Circuit Court of Cook et

ArrmMep and Appellees.récover costs from Appellant. :

In which order and judgment Mr. Presiding Justice

Robert E. English dissents.

Execution may issue. Ts

fa ante habe ib NBR .

ORDER OF THE SUPREME COURT OF ILLINOIS

_ DENYING LEAVE TO APPEAL ~~

And now on this day the Court having duly considered

the Petition for Leave to Appeal herein and being now

fully advised of and concerning the premises, doth over-

rule the prayer - the petition and denies Leave to Appeal

herein. r

And it is further considered by. the Court that the said

Respondents recover of and from the said Petitioner costs

by them in this behalf expended, to be taxed, and that they ©

have execution therefor... -