Petition for Writ of Certiorari — Elgin, Joliet & Eastern Railway Co. v. Crowley
Supreme Court brief1955
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IN THE
Supreme Court of the United States
Ocroszr Tzrm, 1954.
JOHN CROWLEY, CHARLES KERN and
RICHARD T. CRICHE,
Respondents,
vs.
ELGIN, JOLIET AND EASTERN RAILWAY
COMPANY,
Petitioner.
Petition for Writ of Certiorari
STEVENSON, CONAGHAN, VELDE
Pamrrep sx Cecaco Law Paurruve Co. — FRanxim 2-6521
INDEX
Argument
Judgment of Appellate Court ......
Jurisdictional Statement
Opinion of Appellate Court
Order Denying Leave to Appeal
Question Presented
Statement of the Case
Statute Involved
IN THE
Supreme Court of the United States
Octroser Term, 1954.
JOHN CROWLEY, CHARLES KERN and
RICHARD T. CRICHE,
Respondents,
vs.
ELGIN, JOLIET AND EASTERN RAILWAY
COMPANY,
Petitioner.
Petition for Writ of Certiorari
Your petitioner brings this petition for writ of certiorari,
seeking a review by the Court of a novel and important
question arising under the Federal Kmployer’s Liability
Act, namely the liability of the carrier for an occupational
dermatitis contracted by certain susceptible employees
from diesel locomotive servicing operations. This wholly
new field of potential liability created by the widespread
adoption of the diesel locomotive presents grave questions
which should be authoritatively settled by this Court.
Opinion Below.
The opinion of the Appellate Court of Illinois for the
First District is reported as Crowley v. Elgin, J.€E. Ry.
Co., 1 Ill. App. 2d 481, 117 N.E. 2d 843, and is printed as
an appendix to this petition. Neither the trial court nor
the Supreme Court of Illinois, in- denying a petition for
leave to appeal to that court, handed down opinions.
2
Jurisdiction.
The Appellate Court affirmed the judgment below upon
condition that each plaintiff file a remittitur, which was
accordingly done, and the judgment of the Appellate Court
was entered on March 15, 1954. A petition for rehearing
was denied by that court on March 23, 1954. A petition
for leave to appeal from the judgment of the Appellate
Court was denied by the Supreme Court of Illinois on
September 15, 1954, thus making the judgment of the
Appellate Court final for purposes of further review in
this Court.
The petition is filed within ninety days from the denial
of the petition for leave to appeal, and the jurisdiction
of this Court to review the judgment of the Appellate
Court is invoked under Title 28, U.S.C. §§ 1257 (3) and
2101 (C).
Question Presented.
The question presented by this petition is the sufficiency
of the evidence to sustain the essential element of plain-
tiffs’ case that prior to the time they became a*flicted, the
defendant carrier had actual or construction nc wledge of
the possibility that certain susceptible employees—who
failed to use available sanitary facilities—might contact
an occupational dermatitis from remaining too long in
coutact with the oils used in fueling and lubricating its
diesel locomotives. Specifically the question is whether such
actual or construction knowledge of the possible hazard
may be inferred (1) from subsequent reports of diagnoses
by a physician in private practice employed locally to treat
defendant’s employees; or (2) from general medical knowl-
edge (not known to the railroad industry) that when these
oils were used in certain concentrations in other forms in
other industries, certain susceptible individuals developed
dermatitis.
3
Statute Involved.
The only statute involved is the Federal Employer’s Lia-
bility Act, Title 45 U.S.C. §4 51-60, which insofar as per-
tinent here provides:
‘*Every common carrier by railroad while engaging
in commerce between any of the several States * * *
shall be liable in damages to any person suffering in-
jury while he is employed by such carrier in such
commerce * * * for such injury * * * 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 negli-
gence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves or other equipment.’’
STATEMENT OF THE CASE.
This is an action under the Federal Employer’s Liability
Act for occupational dermatitis resulting from contact
with diesel fuel oil and lubricating oils in the monthly
inspection and servicing of defendant’s diesel locomotives.
Suit was brought originally by the plaintiff Crowley;
later by an amended complaint and second amended com-
plaint the plaintiffs Kern and Criche joined in the action.
(Abst. 1) The case was tried before Judge Lupe and
a jury, which returned separate verdicts in favor of each
plaintiff, assessing Crowley’s damages at $42,800, Kern’s
at $28,900 and Criche’s at $19,500. (Abst. 6, 152) Judg-
nients were entered on the verdicts. (Abst. 6, 152) De-
fendant’s motions for judgments notwithstanding the ver-
dicts or in the alternative for new trial (Abst. 153-5) were
denied. (Abst. 6, 155) Defendant appealed from the judg-
ments entered on the verdicts and from the order denying
its motions after verdicts. (Abst. 155)
The sufficiency of the evidence to support the verdict
was raised by defendant’s motions for judgment notwith-
4
standing the verdict or in the alternative for a new
trial, and they were argued and decided adversely to de-
fendant in the Appellate Court.
The Appellate Court affirmed the judgments on condi-
tion of remittiturs, reducing Crowley’s judgment from
$42,800 to $20,000, Kern’s judgment from $28,900 to $10,000
and Criche’s from $19,500 to $10,000.
Plaintiffs claim that they contracted an occupational
dermatitis from coming in contact with diesel fuel oils
and lubricating oils in the monthly servicing and inspec-
tion of defendant’s diesel locomotives in the roundhouse
at defendant’s yard at East Joliet, Illinois. In 1948 defend-
ant completed the conversion of its locomotives operating
out of its Kast Joliet yard from steam locomotives to
diesels; several months after the time he first started to
work on diesel locomotives, each of the plaintiffs devel-
oped the dermatitis for which this suit is brought.
Because of the unusual nature and the importance of
this case, we think it will be most helpful to the Court to
set out in this statement of facts, first, the nature of der-
matitis generally; second, the history of each of the plain-
tiffs; and finally, the evidence on the negligence charged.
1. The Nature of Dermatitis.
The term ‘‘dermatitis’’ means inflammation of the skin.
(Abst. 26, 100, 106) The causes of dermatitis are varied.
Dermatitis may be caused by bacteria, food or other
substances taken internally, virus, pus-forming organ-
isms, fungus. (Abst. 107) Contact dermatitis or derma-
titig venanata—with which we are concerned here (Abst.
26, 102, 104, 105)—results from external contact with
some substance which is irritating to the particular indi-
9]
vidual. (Abst. 26, 107) Almost any substance—from
household articles to industrial processes—may cause a
contact dermatitis in a susceptible individual. (Abst. 26,
27, 40, 107, 115) This is true also of chromates in suffi-
cient concentration and of petroleum derivatives. Sub-
stances which will cause a dermatitis in one individual
may not cause it in another (Abst. 26, 107, 115) ; individual
resistance varies (Abst. 107, 122) and as plaintiff’s med-
ical expert, Dr. Robin, testified, ‘‘You eannot forecast
with any accuracy whether a given individual or a given
group of individuals may contract a contact dermatitis’’.
(Abst. 107)
The external factors involved in contact dermatitis are
the extent and the frequency of the contact with the irri-
tating substance and the period of time over which the
individual is exposed; personal factors are the suscepti-
bility of the individual, the lightness of his complexion,
his age as affecting his capacity to harden his resistance
to a new exposure or his loss of resistance to a previously
non-irritating exposure and, most important, personal
cleanliness in avoiding unnecessary contact with the irri-
tant and in removing the contacted substance by promptly
washing the exposed parts of the body. (Abst. 30, 33, 40,
41, 42, 103, 107, 110, 115, 116, 120, 121, 122) To effect a
cure, contact with the offending substance must be ter-
minated; if kept away from irritation a sufficient length
of time (depending usually on the length and extent of
prior contact), the individual may beconie entirely cured
(Abst. 110, 121) and he may, by following proper pre-
cautionary measures, be able to return to his former
occupation without further trouble. (Abst. 110, 120, 121,
122)
6
2. The History of the Plaintiffs.
John Crowley was first employed by defendant in 1913,
and except when furloughed for lack of work, he had
worked continuously for defendant since 1922. (Abst.
44) He was 61 years old at the time of trial. (Abst. 4+)
Prior to 1947, his work was that of a general machinist
working on steam locomotives, mostly in the “back shop”
where general repairs were made on the locomotives.
(Abst. 44, 55) He had worked in the roundhouse on some
oceasions and was familiar with conditions there. (Abst.
56) In February, 1947, by virtue of his seniority, he
“bid in’? upon a vacancy in the roundhouse (Abst. 55, 56)
and for the first time started to work on diesel locomo-
tives, which were relatively new at that time. (Abst. 44,
58)
Each day a diesel locomotive would be brougit into
the roundhouse for monthly inspection and servicing.
(Abst. 46, 56) The work would be done by a crew of
eight to ten men, two of whom were machinists and two
were machinist’s helpers. (Abst. 46, 56) In removing
the fuel oil filters, the machinist would come in contact
with the fuel oil for a few minutes; in removing the lube
oil filters and the sump strainer and in inspecting the
crankcase and bearings, lubricating oils would get on_his
hands. (Abst. 46, 57, 57) He did this work every other
day. (Abst. 57) Neither he nor the other plaintiffs had
anything to do with mixing the cooling fluid or filling the
cooling system or the fuel oil tanks of the engine. (Abst.
10, 11, 47, 58) In changing the packing in the water
pumps: his hands would come in contact with the cooling
fluid. (Abst. 47) When a leak permitted the oil and cooling
fluid to mix—and it was hard to say how often that would
happen (Abst. 60)—his only contact with the mixture
Yr
was that in the water pump and shaft; it was the job of
the boilermaker to drain off the cooling fluid and of the
pipefitter to drain off the oil. (Abst. 60)
In November, 1947, Crowley developed a rash on his
hands and forearms. (Abst. 47, 48) He first went to his
family doctor, Dr. Curtiss; then on December 22, 1947,
he went to Dr. Meadows, the local company doctor, who
soaked the arms in a solution. (Abst. 48) Dr. Meadows
testified that according to his recollection and his records,
Dr. Albers, his assistant» treated Mr. Crowley. (Abst. 23)
On January 2, 1948, he went to the Public Health Insti-
tute in Chicago, which referred him to the Northwestern
University Clinic, where he was examined and treated
some 18 to 20 times. (Abst. 48-49, 64) In April, 1949 at
i the direction of his attorneys, he first went to Dr. Milton
Robin, who examined him and prescribed treatment from
time to time thereafter. (Abst. 50, 100-102)
7
Upon the advice of the dermatologist at the Northwest-
ern Clinic, Crowley remained away from work until the
latter part of January, 1948; then he worked four days.
(Abst. 65) On February 7, 1948, he was examined by
Dr. Bennett, the railroad’s chief surgeon, who said he
would release Crowley to work involving ‘‘no dirt, grease
or oil”. (Abst. 65) Under the machinist’s union agree-
ment, however, Crowley could not take another machinist’s
position by displacing another man; he could only bid in
on a vacancy (Abst. 66, 95) and similarly, the company
could not transfer him without his consent or refuse to
allow him to work at any job to which his seniority en-
titled him. (Abst. 81, 95, 126) Crowley reported for work
on February 9, 1948, but did not actually return to work
until February 17 or 18, 1948. (Abst. 65) When he re-
turned to work he had a conversation with Mr. Paul Verd,
8
defendant’s superintendent of motive power, who read to
Crowley and discussed with him a letter, the substance’ of
which was that the doctors had advised him not to work
with oils and greases, but that if he returned to work, he
did so upon his own responsibility. (Abst. 66-67, 133)
At this time Crowley had been advised by his family
doctor that his work was the cause of his dermatitis (Abst.
63) and by the two company doctors, Bennett and Mead-
ows, not to return to work around diesel oil (Abst. 64-65,
139) and the dermatologist at the Northwestern Clinic
had advised him to remain away from diesel work. (Abst.
65) Nevertheless, on February 19, 1948, he returned to
his old job, which the company could not refuse him or
transfer him from without his consent (Abst. 81, 95, 126),
and although there have since been vacancies in jobs in
the back shop upon which he could have bid successfully
by virtue of his seniority (Abst. 67, 137), he remained at
that same job until he bid in another roundhouse job in
August, 1952. (Abst. 67)
According to the tabulation of assigned days off duty,
Crowley lost 46 days from work through February, 1948.
(Abst. 53) He lost several days each month thereafter.
The rash spread to his face and neck and later to his
legs and feet. (Abst. 49, 50, 101, 102) He went to Hot
Springs for three weeks and his condition improved.
(Abst. 49) He was off work for several weeks in the
summer of 1949 because of a spontaneous hemorrhage in
the left leg, and during this time away from work his
skin “improved tremendously’’. (Abst. 101, 102). When
* The text of the letter was incorporated into a question put to Crowley
on cross examination, and he admitted Mr. Verd had read him a letter
and given him a copy and they had discussed its contents. (Abst. 65-66,
68) Later the Court refused to admit the letter aaa into evidence.
(Abst. 132-133)
a
9
he returned to work, the eruption returned within a few
days. (Abst. 102) He was off work because of his skin
condition from May 1 to August 10, 1952 losing a total
of 73 working days, and he went again to Hot Springs
(Abst. 54, 55, 102); at the end of that period, his skin
‘twas the best he had ever seen it” (Abst. 102). At the
time of trial in December, 1952, he had dermatitis in a
“milder state’’ on his hands, wrists, forearms and ankles.
(Abst. 102) In Dr. Robin’s opinion this condition was
permanent because of the length of time and frequency
of his exposure. (Abst. 103)
Charles Kern had worked continuously for the E. J.
& E. as a pipefitter since November, 1915» and he was the
first man on the seniority list. (Abst. 72, 80) He was
68 years old at the time of trial. (Abst. 72) Prior to
August, 1948, his work as a pipefitter had been assem-
bling, dismantling and repairing the pipes of steam loco-
motives. (Abst. 72, 78) He worked on eight to twelve
locomotives a day, both those in for monthly servicing
and those in for minor repairs. (Abst. 72, 78) Upon
the conversion to diesel operations, the character of his
work changed and thereafter he worked exclusively on
diesel locomotives. (Abst. 73, 78) His work included
tightening, removing and repairing the pipes of the loco-
motives; he would disconnect the pumps but the machin-
ists and machinist’s helpers would actually handle their
removal. (Abst. 72, 79, 82) In disconnecting the pumps,
which would be possibly six times a week (Abst. 73), and
in disconnecting the pipes of the oil systems, his hands
would come in contact with the cooling fluid and the fuel
oil; sometimes some might splash on his face, neck or
feet. (Abst. 72, 79)
™
10
In January, 1949, he first noticed a reddening of his
hands and a burning irritation; he thought the weather
had chapped his hands. (Abst. 74, 79) Early in Febru-
ary he went to Dr. Meadows, who prescribed an ointment
and then hospitalized him for two weeks. (Abst. 74,
79) From March 24, 1949 to July, 1949, he was under
the care of Dr. Irving Cobin, a dermatologist to whom
the Company sent him; after July, 1949 he was treated
by Dr. Milton Robin. (Abst. 23, 25, 74)
Kern returned to work for a few days in April, 1949,
and the rash “flared up again”. (Abst. 75, 104) He
went back to Dr. Cobin for treatment and, at his direc-
tion, remained away from work until June 1, 1949. (Abst.
75, 79, 104) His tabulation of assigned days off duty
shows that he lost 90 days from work in this period.
(Abst. 76) He continued to work in the roundhouse un-
til the middle of July, 1949; then as the rash returned,
at the suggestion of Dr. Bennett and with his own per-
mission, Kern was transferred to the back shop. (Abst.
75, 81) After thai, on account of the condition of his
hands he lost three days from work in August and Sep-
tember, 1949, three days in the years 1950 and four
days in 1951 (Abst. 76, 77, 79, 88), when his work would
occasionally bring him in contact with diesel oil and his
rash would flare up. (Abst. 111) At its worst in April,
1949, Kern had eruptions on his hands, fingers, wrists
and arms, on his temples and neck, and on his buttocks
and thighs. (Abst. 75, 104) By August) 1949, the condi-
tion had nearly cleared up (Abst. 26); at the time of
trial, the skin on his fingers, hands, wrists and to the
forearms was “slightly reddened, thickened and dry’’
(Abst. 104), the elbows, temples, back» buttocks and thighs
being clear (Abst. 111). Dr. Robin testified he had no
11
opinion whether this ‘“‘fairly mild” eruption was per-
manent or not; if not further irritated, it might clear
up altogether. (Abst. 104-105)
Richard Criche was 52 years old at the time of trial
and had 32 years of seniority as a machinist. (Abst.
86) Prior to 1945, his work had been regularly in the
back shop; in 1945 he bid in a job in the roundhouse and
worked regularly on steam locomotives until the con-
version to diesel operations in the middle of 1948. (Abst.
86, 92, 93) His work on diesel engines was of the same
general nature as Crowely’s; they worked the same turn.
(Abst. 86, 93, 94)
In June, 1949, he noticed that his skin was itchy and
blistered. (Abst. 88, 93) He went to Dr. Meadows, who
referred him to Dr. Cobin who treated him until June,
1951. (Abst. 23, 26, 88) He saw Dr. Lawless in Chi-
cago eleven times from March to June, 1950 and he went
to Dr. Robin for examination but not treatment on two
oceasions. (Abst. 89, 105, 110, 111)
In July and August, 1949, he worked as a temporary
foreman where he was not exposed to diesel oils and
cooling fluids and the eruption cleared gradually (Abst.
88, 94, 105); back at his regular job, the rash broke out
again and Dr. Cobin took him out of service in January,
1950 (Abst. 88, 94). He was out of service until March
30, 1950) losing 83 assigned days’ work. (Abst. 90, 94)
He then gave up the roundhouse job and returned to
work in the back shop, where he was only occasionally
exposed to oil and dirt on the wheels of the locomotives
he was working on. (Abst. 88, 95) Occasionally he was
required to work in the roundhouse a day or two at a
time to fill a vacancy (Abst. 89) and on account of a
—F
12
reduction in forces during the steel strike, he went back
to the roundhouse in June, 1952, where he started to get
a small rash. (Abst. 95) He was off work from August
7 to October 20, 1952, because of an accidental injury
to his right hand; he then returned to the back shop job.
(Abst. 91, 95)
At the time of trial, Criche had a “mild amount of
dermatitis on the tops of the hands and wrists’’ with
slight thickening of the skin and increased pigmentation.
(Abst. 105) His condition was ‘‘approaching normal-
ity” and Dr. Robin had no opinion whether it was tempo-
rary or permanent. (Abst. 105, 106)
3. The Evidence as to Negligence.
The negligence charged in the complaint, in substance,
was that defendant negligently ‘‘directed’’ the plaintiffs
to work in oils used in lubricating, cleaning or servicing
locomotives when it knew, or by the exercise of ordinary
care should have known, that the oils were injurious to
plaintiffs, and negligently failed to provide them with
any protection from such oils, (Abst. 2-3) Over de-
fendant’s objection that it was outside the issues raised
by the complaint (Tr. 5-12) plaintiffs were permitted
to introduce evidence as to the effects of the chromate
solution used in the cooling system of the diesel loco-
motives, on counsel’s representation that at times the
cooling fluid and the fuel oils became mixed together as
the result of leakage. (Tr. 13-15 and Abst. 97)
At the time in question, defendant purchased its diesel
fuel oil from Standard Oil Company under specifications.
(Abst. 9) For use as an inhibitor of scale formation
and electrolytic action in the cooling system of its loco-
motives, defendant purchased from Dearborn Chemical
13
Company a product known as No. 517 (Abst. 8, 11) whose
formula was a trade secret (Abst. 15), but which was
about two-thirds bichromate, which was within the gen-
eral range of the chromate content of similar products
(Abst. 16). Used in a ratio of fifty ounces of compound
to one hundred gallons of water (Abst. 8), this produced
a solution of 1 to 384, or less than three-tenths of one
percent chromate. (Abst. 124) There was no evidence
that defendant’s specifications for diesel fuel oil or the
cooling solution differed in any respect from those com-
monly used by other railroads.
Crowley was the first of defendant’s employees to
develop a dermatitis from working with diesel locomo-
tives. (Abst. 40, 129) Prior to November, 1947, when
Crowley’s dermatitis first appeared, Dr. Bennett, defend-
ant’s chief surgeon, knew that chromate in powdered
form and petroleum in certain concentrations caused skin
irritation to some susceptible people. (Abst. 32, 33) He
had never heard of any case of a railroad employee
claiming to have contracted such a dermatitis. (Abst.
41) Defendant’s general superintendent, Paul Verd, had
worked with diesel locomotives since 1935, first in the
servicing department of Electro Motor Division of Gen-
eral Motors, which manufactures diesel locomotives, then
in successive positions with defendant in charge of its
diesel operations, interrupted by four and a half years’
service in diesel submarine motor maintenance during
World War II. (Abst. 127-128) He had never heard
of any case of dermatitis due to diesel fuel oil until
Crowley’s case. (Abst. 128, 129) Dr. Louis Schwartz
is the senior author of the outstanding text on ‘‘Occu-
pational Diseases of the Skin” and was the organizer in
1930, and until his retirement in July, 1947, the head of
a
14
the dermatology department of the United States Public
Health Service. (Abst. 114, 115, 116) As such it was his
job to keep abreast of industrial developments and to
study occupational dermatitis hazards and devise preven-
tive measures to overcome them. (Abst. 116) At the
time of his retirement he had heard of no case of derma-
titis of a railroad employee from diesel fuel oils or
cooling solutions; so far as he knew up to that time
there had not been any cases of dermatitis in the railroad
industry from the use of diesel fuel oils. (Abst. 116,
117) He first learned of any such cases a year or two
later. (Abst. 116, 117) None of the other three medical
witnesses for the plaintiff testified to any earlier cases
of dermatitis in railroad employees. There was no evi-
dence that prior to that time any railroad employee any-
where whether engaged in diesel operations or not, had in
fact contracted such a dermatitis.
Plaintiffs’ counsel interrogated the medical witnesses
about their familiarity with certain medical publications,
but none of the articles themselves were admitted into
evidence. In response to a question as to the period
of time the effect of chromate had been known, Dr. Robin
referred to the text-book ‘‘Occupational Diseases of the
Skin’’, by Drs. Schwartz, Tulipan and Peck, published
in 1947 that dealt with and discussed the various indus-
tries in which chromates were used and the various re-
actions from exposure (Abst. 98), and in response to a
similar question as to knowledge of the effect of pe-
troleum, he referred to the same text-book. (Abst. 99)
On cross examination he was shown a copy of the book
and he admitted that in the chapters or dermatitis caused,
by chromates and petroleum derivatives, there was no
reference to those substances as used in the railroad
15
industry. (Abst. 108-109) Later, Dr. Schwartz, the
senior author of the book, testified that not until a
year or two after July, 1947, did he hear of any such
dermatitis cases in the railroad industry. (Abst. 116-
117) Dr. Robin also referred to an article in the For-
eign Letters Section of the Journal of the American
Medical Association for October 10, 1931, dealing with
skin sensitivity to chrome compounds in the printing in-
dustry and to an article by Dr. Schwartz in the Jour-
nal of Industrial Medicine in 1942 dealing with derma-
titis among operators of air conditioning equipment (Abst.
99, 108), but on cross examination he admitted he did
not know whether chromates were used in the printing
and air conditioning industries in original powdered form
or in solution, although the hazard and reaction were
different. (Abst. 107-108)
Dr. Robin also referred to an article entitled ‘‘Can
Diesel Fuel Oils Cause Dermatitis’? in the August 25,
1945 issue of the Journal of the American Medical Asso-
ciation. (Abst. 99) This article appeared in the ‘‘Quer-
ies and Minor Notes” Section, a sort of ‘‘question box’’,
under a caption that the answers did not represent the
opinion of any official bodies. (Abst. 22, 42) During
the cross examination of Dr. Schwartz, it developed that
he had written the answer to the question which had
been sent in by a Dr. Stivers, and he testified that it
was not then a matter of common knowledge that men
coming in contact with diesel fuel oil received dermatitis
from it; that the question was referred to him for reply
because it was not a matter of public knowledge, and
that when he answered the question he thought it related
to diesel trucks, for the problem of using diesel fuel oil
in locomotives had not then come to his attention. (Abst.
122-123)
16
There was no evidence that any one connected with
the defendant at the time had read any of these publi-
cations (Abst. 18, 29, 33) or that they were circulated
among persons in the railroad industry. (See defend-
ant’s objection at Abst. 18, 21, 98-99.) The first pub-
lished article shown to have referred to dermatitis in
the railroad industry was published November 17, 1951.
(Abst. 124) Each of these plaintiffs had incurred his
dermatitis prior to that date.
By 1951 the defendant had taken intensive measures
to counteract the dermatitis hazard. Starting in 1949,
new washroom facilities had been constructed in the
roundhouse, adjacent to the diesel work area; late in
1948 or early in 1949, protective creams and ointments
were made available and special detergents with a corn
meal scrubber were supplied at wash stands in the round-
house and later in the new roundhouse washrooms. (Abst.
10-1i, 131-132) Early in 1950 by an article in the com-
pany magazine (Abst. 30), by posted bulletins (Abst.
84), by safety meetings and by letters read and distrib-
uted individually to all employees in the roundhouse and
machine shops (Abst. 10, 133, 135) these employees were
warned of the possibility of contracting dermatitis and
of the personal hygienic measures to be taken to avoid
contracting such dermatitis. (Abst. 10-11, 29-30, 42, 131,
132, 133, 136, 137) Dr. Schwartz made a three day in-
spection of defendant’s facilities in November, 1951 (Abst.
117); he found them in good, sanitary condition, with
most of his basic recommendations already in force.
(Abst. 117, 120) He also examined twenty-six of the
thirty-six individuals (out of 900 employees) who had
reported cases of dermatitis in the past five years; thir-
teen had no skin lesions at the time, seven had non-occu-
=
17
pational skin diseases and six had active dermatitis of
probable occupational origin, none severe enough to be
disabling. (Abst. 118) He did not examine any of the
plaintiffs. (Abst. 122)
These preventive measures were the result of investi-
gation of the practices of other industries by both the
operating and the medical departments of defendant fol-
lowing Crowley’s initial outbreak of dermatitis. (Abst.
41, 131) Prior to that time, there were washroom facili-
ties with individual wash basins, shower stalls and toilets
available in the main shops, immediately adjacent to the
‘‘ola_ roundhouse’? where most of the roundhouse em-
ployees kept their clothes and equipment. (Abst. 130)
In the roundhouse itself, at first there was only running
cold water (Abst. 45, 62); late in 1949 both hot and cold
running water were made available there. (Abst. 131)
Outside the section of the roundhouse where plaintiffs
worked, about fifty feet away, was a washroom with hot
and cold water, washstands and showers. (Abst. 85-86,
130-131) There was a conflict in the evidence as to who
were permitted use of this washroom. (Abst. 69-70, 85-
86, 112) Kern testified that the reason the roundhouse
employees did not like to use that washroom was that
it was also used by yard and other employees, whom
Criche referred to as ‘‘muckers.” (Abst. 86, 112) None
of the plaintiffs used the washing facilities available to
them prior to the outbreak of their dermatitis or, for
that matter, those supplied later. Crowley washed only
at the noon hour. (Abst. 68) Kern did not ever wash
with soap and water, but used kerosene and waste to
clean his hands (Abst. 82), a practice which Dr. Schwartz
testified was more likely to cause dermatitis than any
other (Abst. 119). Criche used kerosene and oil to clean
7
his hands, but he never washed himself at work. (Abst.
113) After the protective creams and ointments and the
detergent and scrubbing agent were supplied, Crowley
used the protective creams only two days; he used the
detergent but not the scrubber (Abst. 68); Kern used
the protective creams only half a dozen times and he
never used the corn meal scrubber (Abst. 80) ; Criche has
never used these preventatives (Abst. 91).
18
19
ARGUMENT.
The Appellate Court erred in holding the evidence sufficient
to take to the jury the issue whether defendant had
actual or constructive knowledge of the hazard of der-
matitis in contact with diesel oils.
Like the occupational disease cases under state statutes
which reached the courts in the mid-thirties,’ this case
is the forerunner of a group of cases in a wholly new
field of liability, that of claims for occupational dermatitis
brought under the Federal Employer’s Liability Act. Spe-
cifically the legal question presented is whether or not
prior to the time these three plaintiffs first contracted a
dermatitis from contact with the oils used as fuel and
lubricants in its diesel locomotives—and these three plain-
tiffs were the first of a handful of defendant’s employees
to become so afflicted and were also, so far as this record
discloses, the first employees of any railroad in this coun-
try to be so afflicted—the defendant had actual or con-
structive knowledge of the possibility of a dermatitis
hazard to its employees from remaining too long in contact
with the diesel oils. A jury found for the plaintiffs; the
Appellate Court, after reducing the verdicts in the aggre-
gate by more that 50%, sustained the finding of liability.
The employer’s actual or constructive knowledge of the
existence of an occupational disease hazard in its opera-
tions is an essential element of a cause of action for occu-
pational disease under the Federal Employer’s Liability
Act. Urie v. Thompson, 337 U.S. 163. The plaintiffs here
sought to show defendant’s knowledge prior to the time
* Parks v. Libby-Owens Ford Glass Co., 360 Ill. 130; Boshuizen v.
Thompson & Taylor Co., 360 Ill. 160; Vallat v. Radium Dial Co., 360
Ill. 407; Novarro v. Illinois Steel Co., 360 Ill. 483.
20
that these plaintiffs contracted the disease by three meth-
ods: first, by interrogating the medical and expert wit-
nesses as to their familiarity with articles published in
medical journals on the effects of petroleum or chomate
solutions in contact with human beings; secondly, by the
reports of defendant’s local doctor at Joliet, Illinois to
the defendant’s chief surgeon concerning these three plain-
tiffs; and finally, by proof of general knowledge of the
existence of a dermatitis hazard in other industries from
the use of petroleum derivatives or chromate solutions.
The Appellate Court held that the questions concerning
the medical publications on dermatitis were improper, but
held that ‘‘inasmuch as there is strong support in the
record for the verdicts on the question of liability * * °
under all the circumstances we do not think that defendant
was harmed by the admission of the evidence.’”” We may,
therefore, disregard the testimony concerning the medical
publications as tending to support the judgments below.
We do insist, however, that in view of the importance
which this testimony assumed before the jury as each
witness in turn was interrogated concerning these publi-
cations in isolated medical journals, that the effect of
the allowance of the improper line of questioning was def-
initely prejudicial to the defendant and when we consider
the jury’s obvious misconception of the damage issue, as
evidenced by the substantial remittiturs which the Appel-
late Court required as a condition of affirming the judg-
ments, that the error cannot be said not to have affected
the jury’s view of the liability issues.
The reports of defendant’s local doctor at Joliet, a phy-
sician engaged in general practice (Abst. 24) to the de-
fendant’s chief surgeon in which he reported his diagnosis
as contact dermatitis from diesel oil (Abst. 34, 35, 36, 38)
—
21
were received in evidence not as part of the doctor’s exam-
ination as a witness but during the examination of de-
fendant’s chief surgeon on the theory that as reports
made by the local doctor to him as chief surgeon, they
constituted ‘‘admissions against interest.’’ The Appellate
Court sustained their receipt in evidence on this theory.
We submit that this was error and that these reports can-
not be relied upon to support the judgments below.
The reports were obviously hearsay and therefore in-
competent and inadmissible. Oard v. Dolon, 320 Ill. 371,
378; Lewandowski v. Jueak, 305 Ill. 612, 614. The only
theory upon which a doctor’s written diagnosis has been
held permissible in evidence as an ‘‘admission against
interest” has been where the reported diagnosis was incon-
sistent with his testimony as a witness upon the trial.
Bermger v. Lackner, 331 Ill. App. 591. Here there was
no dispute about the diagnosis of the plaintiffs’ condition
nor was there any inconsistency with Dr. Meadows’ testi-
mony as a witness. The “admissions” if they be consid-
ered such, were those of a private practitioner employed
to treat the plaintiffs; he was not an officer, agent or em-
ployee of the railroad but his diagnosis was his personal,
expert opinion. What he diagnosed the condition of these
plaintiffs to be, after they had become afflicted, and what
he then reported to the defendant cannot be regarded as
knowledge with which the defendant was chargeable prior
to that time, nor was his expert, scientific knowledge as a
private practitioner chargeable to the defendant prior to
that date. Spence v. Bath Iron Works Corp., 140 Me. 287,
37 A. 2d 174. We submit that the reports of Dr. Meadows
were incompetent to prove that prior to their receipt the
defendant had any knowledge of the possibility of a der-
matitis hazard from contact with diesel oils.
22
This leaves only the matter of general knowledge about
petroleum derivatives and chromate solutions as the basis
for the Appellate Court’s holding that ‘‘there is strong
support in the record for the verdicts on the question of
liability.”’
We submit that the fact that there may have been some
general knowledge from the experience of other industries
in the use of petroleum derivatives and chromates in
wholly undisclosed concentrations and in altogether dif-
ferent uses is not sufficient to charge the railroad indus-
try with knowledge that diesel locomotive operations pre-
sented a dermatitis hazard to their employees. This issue
must be judged against the factual background of this
case which is undisputed. The defendant began to use
diesel locomotives in its switching operations and in its
main-line operations originating in its Hast Joliet yard
in 1947. There is no evidence that prior to that time any
railroad employee, either in the defendant’s employ or in
the employ of any railroad, had ever been known to
contract a contact dermatitis from the oils used in fueling,
servicing and lubricating diesel locomotives. Defendant’s
superintendent of motive power, Mr. Verd, who had worked
with diesel engines since 1935, first with the manufacturer,
then with the defendant, then for four and a half years
in diesel submarine motor maintenance work during World
War II, and after the war again with the defendant (Abst.
127-128) had never heard of a case of dermatitis claimed
to be due to diesel oils prior to the outbreak of Crowley’s
case (Abst. 128-129). Defendant’s chief surgeon had never
before heard or learned of a case of dermatitis in the
railroad industry from either diesel fuel oil or the cooling
solution containing chromate (Abst. 39, 40). Dr. Louis
Schwartz, the organizer and until 1947 the head of the
23
Dermatology Department of the United States Public
Health Service, whose job it was to keep informed as to
occupational disease hazards in industry (Abst. 114, 115,
116) and who had access to and read all current medical
literature on the subject (Abst. 122), had never heard of
any cases of dermatitis in the railroad industry from the
use of diesel fuel or lubricating oils or chromate solutions
at the time of his retirement in July of 1947 (Abst. 116-
117).
It is true that it was a matter of general medical knowl-
edge that petroleum derivatives in certain concentration
and chromates in their original powdered form were known
to defendant’s chief surgeon as a cause of irritation to
certain susceptible people (Abst. 32-33, 39) but this is
true of nearly every substance. All of the medical wit-
nesses agreed that almost any substance may cause a der-
matitis in a susceptible individual (Abst. 26, 27, 40, 107,
115). Knowledge that a substance in concentrated form is
harmful does not establish that an employer knew or
should have known that the diluted quantities or intermit-
tent contact with those substances used in its diesel opera-
tions are harmful. The court made it clear in Pinkley v.
Chicago & E. I. R. Co., 246 Ill. 370, that an employer is
not liable to the first of its employees to contract a der-
matitis from substances handled in the course of his work.
In that case the plaintiff claimed to have sustained a
severe injury as the result of a dermatitis contracted
while unloading a car of piling which had been freshly
treated with creosote. The court, in holding that there
was no liability, stated:
‘‘So far as the record discloses appellee was the first
person to sustain any serious or permanent injuries
from handling timbers treated with creosote during the
24
many years this substance has been in use as a preser-
vative for wood. Under such circumstances, a finding
that appellant knew, or by exercising ordinary dili-
gence might have known, that the coal-tar preparation
was liable to produce the injuries of which the appellee
complains, is manifestly without any evidence what-
ever to support it. If the appellant did not know, or by
exercising ordinary diligence could not have known,
that such injuries were liable to result, then the law
did not impose any duty upon it to warn appeliee of the
danger of receiving such injuries, before or at the time
of giving the order which appellee alleges was negli-
gently given.”
The same rule has been applied in cases arising in other
states under employer’s liability laws when liability was
first sought to be imposed upon an employer under similar
circumstances. See Grammer v. Mid Continent Petroleum
Corp. (C.C.A. 10) 71 F. 2d 38, 44; Allen v. Shell Petroleum
Corp., 146 Kan. 67, 68 P. 2d 651; Spence v. Bath Iron Works,
140 Me. 287, 37 A. 2d 174. These cases apply the common
sense rule that there is no liability for an occupational
disease contracted by an employee more susceptible than
others resulting from contact with a substance which was
not inherently dangerous except in concentrated form. As
the court pointed out in the Grammer case, nicotine in con-
centrated form is a deadly poison yet millions of persons
smoke cigarettes without poisonous effects. This too is the
rule of the ‘‘manufacturer’s products liability cases.”’
Stanton v. Sears Roebuck & Co., 412 Ill. App. 496; Benneti
v. Pilot Products Co., (Utah 1951) 235 P. 2d 525. The prin-
ciple of those cases is applicable to Federal Employer’s
Liability cases. Creamer v. Ogden Union Ry. Co. (Utah
1952) 242 P. 2d 575, 577.
The products used by the defendant from which these
plaintiffs’ dermatitis is claimed to have resulted, were stan-
25
dard products purchased in the open market under brand
or trade names from reputable manufacturers. If merely
because there is general knowledge that petroleum deriva-
tives may cause a contact dermatitis to certain susceptible
individuals, an employer is required to conduct research
into the possible existence of such a hazard and to warn
his employees and to take measures to protect them against
the consequences of their lack of personal cleanliness, then
every employer must take such steps for the protection of
his employees. There is no different rule of negligence
which binds railroad companies which does not apply equal-
ly to all other employers. If liability may be imposed upon
this defendant merely because of this supposed general
knowledge of the characteristics of petroleum derivatives,
then every member of this court or his wife, who provides
a household servant with standard brand detergents (a
very prolific source of dermatitis) or with polishes or waxes
in common usage without warning the servant of the pos-
sible danger and providing preventative measures, is equal-
ly guilty of negligence and is equally liable should that
servant contract a rash or skin ailment. Every filling sta-
tion operator who is not under a state Workmen’s Occu-
pational Diseases Act is liable in negligence to his em-
ployees who come in contact with gasoline and motor oils
even though he may never have known or had any means
of knowing about either the hazard or the necessity of
insisting upon high standards of personal cleanliness for
his employees. Common foods like strawberries and choco-
late are a frequent cause of dermatitis. Are the sellers of
those goods in the open market: liable to their customers
if they fail to warn of a hazard? Is a restaurant liable to
the patron whose dermatitis stems from eating strawberry
shortcake because the menu did not carry a warning of
the possibility of a strawberry rash?
26
These questions are not asked in a facetious spirit. These
examples are presented because they demonstrate that the
duty imposed upon the railroad industry by the opinion of
the Appellate Court in this case is one which is squarely at
odds with reason and common sense. These plaintiffs were
the first men of their class to become afflicted with this
dermatitis. The best informed expert in the world did not
recognize the possibility of such a hazard prior to the time
that Crowley and the other two plaintiffs became afflicted.
How then can ‘‘reasonable care’’ require of this defendant a
higher degree of knowledge than the best informed person
in the world had on this subject? How can this defendant
be held to a standard of care in preventative measures
which even the United States Public Health Service, with
all the experience of other industries at its command, did
not recognize as needed in the railroad industry?
We are not dealing here with a substance known to be
poisonous even in small quantities such as the carbon mo-
noxide gas in Baumgartner v. Pennsylvania R. Co., 292 Pa.
106, 140 A. 622 or the oxalic acid which the defendant in
Harvey v. Welch, 86 N. H. 72, 163 A. 417, ‘‘admittedly knew
to be poisonous.’? We are dealing here with substances
normaliy used in complete safety by persons in all walks
of life. These men contracted their dermatitis because they
failed to use the sanitary facilities which were available,
for personal habits of cleanliness are the most important
factor in the avoidance of contact dermatitis. (Abst. 40,
41, 42) The significant fact in this case is that these three
plaintiffs did not avail themselves either of the sanitary
facilities originally provided or of the more extensive facili-
ties later installed. (Abst. 68, 82, 113).
In the court below, the plaintiffs relied upon and the
Appellate Court cited Young v. Pennsylvania R. Co. (C.A.
_—
27
2d) 197 F. 2d 727, and plaintiff also cited to the court the
decision now reported as Evinger v. Thompson (Mo. 1954)
265 S.W. 726. But while the question of the carrier’s ac-
tual or constructive knowledge was argued pro forma in
the Young case, none of the authorities relied upon by this
defendant was cited to the court in the briefs in that case
and the points urged in the Evinger case were apparently
not properly raised upon the record in the court below so
as to require consideration by the reviewing court. Yet in
both cases, despite these limitations upon the presentation
of the question, there were dissents from the majority opin-
ion. We submit these cases do not settle the question which
is so important to the railroad industry which is presented
by these occupational dermatitis cases. The issue is im-
portant and the decision below is in conflict with prior de-
cisions of this and other courts upon the same or related
questions. We submit that the issue is properly one for
authoritative determination by this Court and that the peti-
tion for certiorari should be granted to review this question.
Finally we submit that the holding of the Appellate
Court that these verdicts were excessive deprives them of
any weight which may properly be given to a jury’s ver-
dict. The Appellate Court reduced the judgment in Crow-
ley’s favor from $42,800 to $20,000, Kern’s judgment from
$28,900 to $10,000, and Criche’s judgment from $19,500 to
$10,000. In the aggregate the remittiturs required were
approximately 57% of the amounts of the verdicts origin-
ally returned by the jury.
If the jury were more than 50% wrong in their determin-
ation of the issues of damage which were submitted to them
for decision we think it is a fair conclusion that they
were more than half wrong likewise in their determination
28
of the liability questions. Particularly that is true where,
as here, improper questions were asked of the medical and
expert witnesses concerning medical publications, thus
conveying to this undiscriminating jury the notion that
there was a substantial body of available medical literature
on the problems presented by this case. We submit that the
amount of the remittiturs required by the Appellate Jourt
and acceded to by the plaintiffs, establish that the jury in
this case wholly misconceived the damage issue and by the
same token they must have equally misunderstood the
liability issues. We submit that this significant factor in
this case strips these verdicts of all weight which might
normally attach to a jury verdict in a contested case and
it was an abuse of discretion as a matter of law not to va-
cate these verdicts in their entirety and remand the case
for new trial.
CONCLUSION.
Your petitioner respectfully prays that this court grant
a writ of certiorari to review the decision of the Appellate
Court of Illinois for the First District, affirming the judg-
ment of the Superior Court of Cook County, because of the
importance of the issues presented and the dangerous
precedent upon far-reaching questions of negligence estab-
lished by the opinion below.
Haritan L. Hacksert,
Attorney for Petitioner.
29
APPENDIX.
Opinion of the Appellate Court.
The opinion of the Appellate Court which is reported
as Crowley v. Elgin J. d E. Ry. Co., 1 Til. App. 2d 481,
117 N. E. 2d 843, is as follows:
46096 >
John Crowley, Charles Kern
and Richard T. Criche,
Appeal from
pore | Superior Court
“ Cook County
Elgin, Joliet and Eastern Railway
Company, a corporation,
' Appellants.
Mr. Justice Burke DELIVERED THE Oprnion oF THE CouURT.
John Crowley, Charles Kern and Richard T. Criche
filed a complaint in the Superior Court of Cook County
against the Elgin, Joliet and Eastern Railway Company
under the Federal Employers’ Liability Act for occupa-
tional dermatitis resulting from contact with diesel fuel
oil and lubricating oils in the monthly inspection and
servicing of defendant’s diesel locomotives. A jury re-
turned separate verdicts in favor of each plaintiff, assess-
ing Crowley’s damages at $42,800, Kern’s at $28,900 and
Criche’s at $19,500. Defendant’s motions for judgments
notwithstanding the verdicts or, in the alternative, for a
new trial, were denied. A separate judgment was entered
in favor of each plaintiff, to reverse which defendant
appeals.
The evidence establishes that plaintiffs contracted occu-
pational dermatitis from coming in contact with diesel fuel
oils and lubricating oils in the monthly servicing and in-
30
spection of defendant’s locomotives in the warehouse at
defendant’s yard at East Joliet, Illinois. The plaintiffs
and the defendant were engaged in interstate commerce.
The word ‘‘dermatitis’’ means inflammation of the skin.
The causes of dermatitis are varied. It may be caused
by bacteria, food or other substances taken internally,
virus, pus-forming organisms and fungus. Contact derma-
titis, with which plaintiffs are afflicted, results from ex-
ternal contact with some substance which is irritating to
the particular individual. Almost any substance, from
household articles to industrial processes may cause a
contact dermatitis in a susceptible individual. This is
true also of chromates in sufficient concentration and of
petroleum derivatives. Substances which will cause a
dermatitis in one individual may not cause it in another;
individual resistance varies. The external factors in-
volved in contact dermatitis are the extent and frequency
of the contact with the irritating substances and the time
of individual exposure; personal factors are the suscepti-
bility of the individual, the lightness of his complexion,
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 avoid-
ing unnecessary contact with the irritant and in removing
the contacted substance by promptly washing the exposed
parts of the body. To effect a cure, contact with the
offending substance must be terminated. If kept away
from the irritation a sufficient length of time, depending
usually on the length and extent of prior contact, the
individual may become entirely cured, and he may, by
following proper precautionary measures, be able to re-
turn to his former occupation without further trouble.
The action is predicated upon alleged violation of the
Federal Employers’ Liability Act, in that the defendant
32
was negligent in failing to take reasonable precautions,
discoverable by the exercise of ordinary care, to protect
plaintiffs from the occupational hazard inherent in their
work in and about diesel fuel and lubricating oils, and
that as a result of one or more of the negligent acts of
the defendant, each of the plaintiffs became and is af-
flicted with dermatitis. Defendant maintains that it can-
not be held liable for the contact dermatitis with which
each plaintiff became afflicted because the evidence fails
to prove that it had actual or constructive knowledge of
the hazard of dermatitis, or that it was negligent as
charged. John Crowley was first employed by defend-
ant in 1913, and except when furloughed for lack of work,
he had worked continuously for it since 1922. He was
61 years of age at the time of trial. He was classified as
a general machinist. Between 1920 and 1947 he did gen-
eral repair work in the ‘‘back shop’’ at Joliet on steam
locomotives. In 1936 defendant began to replace its
steam locomotives with diesel locomotives. The change-
over from steam to diesel locomotives was completed by
the end of 1949. Crowley had worked in the roundhouse
‘on some occasions and was familiar with conditions there.
In February, 1947, by virtue of his seniority, he ‘‘bid in’’
upon a vacancy in the roundhouse at East Joliet, and for
the first time started to work on diesel locomotives. He
was in good health. Prior to February, 1947 he had no
contact with diesel fuel oil. He had an eighth grade edu-
cation. He had not been instructed by the defendant as
to the possible ill effects of coming in contact with this
oil. No orders, written or otherwise, were received by
him on this subject from his superiors. Prior to Novem-
ber, 1947, when he first became afflicted with dermatitis,
he had no skin affliction of any kind.
Each day a diesel locomotive would be brought into the
roundhouse for monthly inspection and servicing. The
ee. .
work would be done by the crew of eight to ten men, two
of whom were machinists and two machinist’s helpers. In
removing the fuel oil filters, the machinist would come in
contact with the fuel oil for a few minutes. In remov-
ing the lube oil filters and the sump strainer and inspect-
ing the crankease and bearings, lubricating oils would
get on his hands. He did this work every other day.
Neither he nor the other plaintiffs had anything to do
with mixing the cooling fluid or filling the cooling system
or the fuel oil tanks of the engine. In changing the pack-
ing in the water pumps, his hands would come in contact
with the cooling fluid. When a leak permitted the oil
and cooling fluid to mix—and it was hard to say how often
that would happen—his only contact with the mixture was
that in the water pump and shaft. It was the job of the
boilermaker to drain off the cooling fluid and of the pipe-
fitter to drain off the oil. In this work his hands and
other parts of his body would come in contact with diesel
and lube oils. He came in contact with these fuels every
working day from February, 1947 to November, 1947,
when he first developed a rash on his hands and arms as
far as his elbows. He first went to his family physician
in Joliet on November 20, 1947. When his condition did
not improve he asked his foreman to send him to the hos-
pital. He was then sent to the Silver Cross Hospital in
Joliet, where he saw Dr. William A. Meadows, the local
surgeon for the defendant. Dr. Meadows testified that
according to his recollection and records, Dr. Albers, his
assistant, treated Crowley.
32
Dr. Meadows diagnosed Crowley’s condition as contact
dermatitis from diesel oils. He continued to treat him
until after January, 1948. When the condition failed
to improve he sent Crowley to the Northwestern Uni-
versity Clinic in Chicago. On January 2, 1948, Crowley
—
went to the Public Health Institute in Chicago, which re-
ferred him to the Northwestern University Clinic, where
he was examined and treated 18 to 20 times. When Dr.
Meadows first saw Crowley on December 22, 1947, he
made a report to defendant’s chief surgeon, Dr. R. J.
Bennett in Chicago, on the forms provided by the de-
fendant. In that report he found that Crowley’s condi-
tion was caused by ‘‘working near diesel oil’? and made
a diagnosis of Crowlev’s malady as ‘‘contact dermatitis
from diesel oil.’? Upon the advice of the dermatologist
at the Northwestern Clinic, Crowley remained away from
work until the latter part of January, 1948; then he
worked four days. On February 7, 1948, he was again
examined by Dr. Bennett, defendant’s chief surgeon, who
said he would release him to work involving ‘‘no dirt,
grease or oil.’? Under the machinist’s union agreement,
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. He reported
for work on February 9, 1948, but did not actually return
to work until February 17, 1948. When he returned to
work he had a conversation with Paul Verd, defendant’s
superintendent of motive power, who read and discussed
with him a letter, the substance of which was that the
doctors had advised him not to work with oils and greases,
but that if he returned to work he did so upon his own
responsibility.
33
At this time Crowley had been advised by his family
physician that his work was the cause of his dermatitis
and by the two company doctors not to return to work
around diesel oil, and the dermatologist at the Northwest-
ern Clinic had advised him to remain away from diesel
34
work. He returned to his old job on February 17, 1948,
which the defendant could not refuse him or transfer
him from without his consent. Although there have since
been vacancies in jobs in the back shop upon which he
could have bid successfully by virtue of his seniority, he
remained at the same job until he bid in another round-
house job in August, 1952. According to the stipulation
of the days off duty, Crowley lost 46 days from work
through February, 1948. He lost several days each
month thereafter. The rash spread to his face and neck
and later to his legs and feet. He went to Hot Springs
for three weeks and his condition improved. He was off
work for several weeks in the summer of 1949 because of a
spontaneous hemorrhage in the left leg, and during this
time away from work his skin ‘‘improved tremendously.”’
When he returned to work, the eruption returned with-
in a few days. He was off work because of his skin condi-
tion from May 1 to August 10, 1952, losing a total of 73
working days. He went again to Hot Springs. At the
end of that period the condition of his skin was improved.
At the time of the trial in December, 1952, he had derma-
titis in a ‘‘milder state’’ on his hands, wrists, forearms
and ankles. In the opinion of Dr. Milton Robin, this
condition was permanent because of the length of time
and frequency of his exposure. Crowley had lost approxi-
mately 329 days from his work on account of the derma-
titis from December, 1947 to September, 1952. His lost
time and medical expenses total approximately $5,000.
Charles Kern had worked for defendant as a pipefitter
since November, 1915, and was the first man on the
seniority list. He was 68 years old at the time of the
trial. Prior to August, 1948, his work as a pipefitter had
been assembling, dismantling and repairing the pipes of
_—-
steam locomotives. Upon the conversion to diesel opera-
tions, the character of his work changed and thereafter
he worked exclusively on diesel locomotives. His work
included tightening, removing and repairing the pipes
of locomotives. In disconnecting the pumps and the pipes
of the oil systems, his hands would come in contact with
the cooling fluid and the fuel oil. Sometimes some might
splash on his neck, face or feet. In January, 1949, he
first noticed a reddening of his hands and a burning irri-
tation. He thought the weather had chapped his hands.
Early in February he went to Dr. Meadows, who pre-
scribed an ointment, and then hospitalized him for two
weeks. Prior to February, 1949, he was in good health
and had no skin affliction. He had never made a study
of the ill effects of working with diesel oil and did not
know prior to that time that contact with the oil would
affect him. No one had ever told him of the ill effects
therefrom. He first saw Dr. Meadows on February 5,
1949, who found that he had ‘‘an itch, rash, on the back of
his hands and forearms.’’ On Dr. Meadows’ orders he
was hospitalized for two weeks. Dr. Meadows treated him
for a time and when he apparently did not improve he
sent him to defendant’s dermatologist, Dr. Irving M.
Cobin. Dr. Meadows made a final report of his examina-
tion of Kern to defendant’s chief surgeon, Dr. Bennett,
in which he found the cause of Kern’s condition: ‘*Work-
ing in diesel oil developed rash on hands,’’ and made a
diagnosis of ‘‘contact dermatitis of hands and forearms.’’
35
Kern returned to work for a few days in April, 1949,
and the rash flared up again. He went back to Dr. Cobin
for treatment and at his direction remained away from
work until June 1, 1949. He lost 90 days from work in this
period. He continued to work in the roundhouse until
the middle of July, 1949. Then as the rash returned, at
36
the suggestion of Dr. Bennett and on his own volition, he
transferred to the back shop. After that, on account of
the condition of his hands, he lost 3 days from work in
August and September, 1949, 3 days in 1950 and 4 days
in 1951, when his work would occasionally bring him in
contact with diesel oil and his rash would flare up. At its
worst in April, 1949, he had eruptions on his hands,
fingers, wrists, arms, temples, neck, buttocks and thighs.
By August, 1949, the condition had nearly cleared up. At
the time of the trial the skin on the fingers, hands, wrists
and forearms was ‘‘slightly reddened, thickened and dry,’’
the elbows, temples, back, buttocks and thighs being clear.
Dr. Robin, testifying for plaintiff, said he had no opin-
ion whether this ‘‘fairly mild’’ eruption was permanent
or not, and that if not further irritated, it might clear
up altogether. Kern described the present condition of
his spine, face and neck as ‘‘itchy’’ and that ‘‘since 1949
the condition of my skin has changed very little. It both-
ers me very bad and the irritation is still severe.’’ He
lost a total of 118 days from his work, making the salary
loss during that period of time approximately $2,500.
Richard T. Criche was 52 years old at the time of the
trial and had 32 years of seniority as a machinist. Prior
to 1945 his work had been regularly in the back shop. In
1945 he bid in a job in the roundhouse and worked regu-
larly on steam locomotives until the conversion to diesel
operations in the middle of 1948. His work on diesel
engines was of the same general nature as Crowley’s. In
the early part of 1948 he was assigned to work on diesel
locomotives exclusively. In connection with his work on
these engines his hands would become saturated with
fuel oil and it would sometimes get on his face and clothes.
Prior to commencing work on the diesel locomotives he
did not know anything about danger from fuel and lubri-
37
cating oils. No one had given him any instructions about
the danger of exposure to the oils. He had an eighth
grade education and had never had any training in this
connection. The defendant did not furnish him with pro-
tective ointments, soaps, scrubbing fluids, gloves or other
protective devices prior to June, 1949. In June, 1949
his skin developed a burning and itchy sensation and had
little water blisters. He saw his foreman, who sent him
to Dr. Meadows. He was then referred to Dr. Cobin, who
commenced to treat him on June 7, 1949. He remained
under the care of Dr. Cobin until June 28, 1951. Dr.
Cobin diagnosed his ailment as ‘‘contact dermatitis.’’ Dr.
Meadows, in his official report to Dr. Bennett dated June
7, 1949, found that Criche had developed a rash on both
hands from ‘‘working in diesel oil,” and diagnosed his
condition as ‘‘contact dermatitis.’” He saw Dr. Lawless
in Chicago 11 times from March to June, 1950. He went
to' Dr. Robin for examination but not treatment on two
occasions. 3
In July and August, 1949, he worked as a temporary
foreman where he was not exposed to diesel oils and cool-
ing fluids and the eruption cleared gradually. Back at
his regular job the rash broke out again and Dr. Cobin
took him out of service in January, 1950. He was out of
service until March 30, 1950, losing 83 days’ work. He
then gave up the roundhouse job and returned to work in
the back shop, where he was only occasionally exposed to
oil and dirt on the wheels of the locomotives he was work-
ing on. Occasionally he was required to work in the
roundhouse a day or two at a time to fill a vacancy, and
on account of a reduction in force during the steel strike,
he went back to the roundhouse in June, 1952, where he
started to get a small rash. He was off work from August
33
7 to October 20, 1952, because of an accidental injury to
his right hand. He then returned to the back shop job.
He lost approximately 199 days from his work, or a total
salary loss of approximately $1,500. At the time of trial
he had a ‘‘mild amount of dermatitis on the tops of his
hands and wrists,’’ with slight thickening of the skin and
increased pigmentation. His condition was ‘‘approaching
normality’’ and Dr. Robin had no opinion whether it was
temporary or permanent.
Plaintiffs were permitted to introduce evidence as to
the effects of chromate solution used in the cooling sys-
tem of the diesel locomotives on their counsel’s represen-
tation that at times the cooling fluid and fuel oils became
mixed together as the result of leakage. There is no evi-
dence to support the theory on which the testimony as
to the chromate solution was introduced. Defendant pur-
chased its diesel fuel oil from Standard Oil Company
under specifications. For use as an inhibitor of scale
formation and electrolytic action in the cooling system of
its locomotives, the defendant purchased from Dearborn
Chemical Company a product known as No. 517, whose
formula was a trade secret, but which was about two-
thirds bichromate, which was within the general range of
the chromate content of similar products. Used in a ratio
of 50 ounces of compound to 100 gallons of water, this
produced a solution of 1 to 384, or less than 3/10ths of
one percent chromate. There was no evidence that de-
fendant’s specifications for diesel fuel oil or the cooling
solution differed in any respect from those commonly used
by other railroads.
Prior to November, 1947, when Crowley’s dermatitis
first appeared, Dr. Bennett, defendant’s chief surgeon,
knew that chromate in powder form and petroleum in
39
certain concentrations caused skin irritations to some
susceptible people. He had never heard of any case of a
railroad employee claiming to have contracted such der-
matitis. Defendant’s general superintendent, Paul Verd,
had worked with diesel locomotives since 1935, first in the
servicing department of Electro Motive Division of Gen-
eral Motors, which manufactures diesel locomotives, then in
successive positions with defendant in charge of diesel
operations, interrupted by four and a half years’ service
in diesel submarine motor maintenance during World War
Il. He had never heard of any case of dermatitis due to
diesel fuel oil until Crowley’s case. It was known in 1947
that certain individuals suffered ill effects by coming in
contact with solutions containing chromate. Books had
been published on this subject. Dr. Cobin testified that
it had been known for 22 years that certain oils would
produce dermatitis. When he saw Kern and Criche he
knew that they had been in contact with fuel oil. When
Dr. Meadows first saw Crowley on December 22, 1947, he
knew that his condition was caused from ‘‘working near
diesel oil’? and that this plaintiff was afflicted with con-
tact dermatitis from fuel oil, and officially reported to
Dr. Bennett on Kern on February 5, 1949, and on Criche
on June 7, 1949. On December 22, 1947, Dr. Meadows
issued an order that Crowley was not to work around
diesel oil. Dr. Louis Schwartz, the senior author of the
outstanding text on ‘‘Occupational Diseases of the Skin,’’
and who was the organizer in 1930, and until his retire-
ment in 1947, the head of the dermatology department of
the United States Public Health Service, said that at the
time of his retirement he had heard of no case of derma-
titis of a railroad employee from diesel fuel oils or cooling
solutions, and that so far as he knew up to that time there
40
had not been any case of dermatitis in the railroad in-
dustry in the use of diesel fuel oil and that he first learned
of any such cases a year or two later.
Plaintiff’s counsel interrogated the medical witnesses
about their familiarity with certain medical publications,
but none of the articles were admitted into evidence. In
response to a question as to the period of time the effect
of chromate had been known, Dr. Robin referred to the
textbook ‘‘Occupational Diseases of the Skin” of which
Dr. Schwartz was a coauthor, published in 1947, that dealt
with and discussed the various industries in which chro-
mates were used and the various reactions from exposure,
and in response to a similar question as to knowledge of
the effect of petroleum, he referred to the same textbook.
On cross-examination he was shown a copy of the book
and admitted that in the chapters on dermatitis caused by
chromates and petroleum derivatives, there was no refer-
ence to those substances as used in the railroad industry.
Later Dr. Schwartz testified that not until a year or two
after July, 1947, did he hear of any such dermatitis cases
in the railroad industry. Dr. Robin also referred to an
article in the Foreign Letters Section of the Journal of
the American Medical Association for October 10, 1931,
dealing with skin sensitivity to chromate compounds in
the printing industry, and to an article by Dr. Schwartz
in the Journal of Industrial Medicine in 1942 dealing with
dermatitis among operators of air conditioning equipment.
On cross-examination he admitted that he did not know
whether chromates were used in the printing and air con-
ditioning industries in original powdered form or in solu-
tion, although the hazard and reaction were different.
Dr. Robin also referred to an article entitled ‘‘Can Diesel
Fuel Oils Cause Dermatitis’’ in the August 25, 1945 issue
41
of the Journal of The American Medical Association. This
article appeared in the ‘‘Queries and Minor Notes” Sec-
tion, a sort of ‘‘question box,” under a caption that the
answers did not represent the opinion of any official bodies.
During the cross-examination of Dr. Schwartz it developed
that he had written the answer to the question which had
been sent in by a Dr. Stivers, and he testified that it was
not then a matter of common knowledge that men coming in
contact with diesel fuel oil received dermatitis from it; that
the question was referred to him for reply because it was
not a matter of public knowledge; and that when he an-
swered the question he thought it related to diesel trucks,
for the problem of using diesel fuel oil had not then come
to his attention,
There was no evidence that any one connected with the
defendant at the time had read any of these publications or
that they were circulated among persons in the railroad
industry. The first published article shown to have re-
ferred to dermatitis in the railroad industry was published
November 17, 1951. Each of the plaintiffs had incurred
his dermatitis prior to that date. In support of defendant’s
contention that by 1951 it had taken measures to counteract
the dermatitis hazards, it points out that starting in 1949
new washroom facilities had been constructed in the round-
house, adjacent to the diesel area; that late in 1948 or
early in 1949 protective creams and ointments were made
available and special detergents with a corn meal scrubber
were supplied at washstands in the roundhouse and later
in the new roundhouse washrooms; that early in 1950, by
an article in its magazine, by posted bulletins, by safety
meetings and by letters read and distributed individually
to all employees in the roundhouse and machine shops,
these employees were warned of the possibility of con-
2
tracting dermatitis and of personal hygienic measures taken
to avoid contracting such dermatitis. Dr. Schwartz made
a three day inspection of defendant’s facilities in Novem-
ber, 1951, and found them in good sanitary condition, with
most of its basic recommendations already in force. He
also examined 26 of the 36 individuals (out of 900 em-
ployees) who had reported cases of dermatitis in the past
5 years. Of these, 13 had no skin lesions at the time, 7
had nonoccupational diseases and 6 had active dermatitis
of probable occupational origin, none severe enough to
be disabled. He did not examine any of the plaintiffs.
These preventive measures were the result of investiga-
tion of the practices of other industries by both the oper-
ating and medical departments of the defendant following
Crowley’s initial outbreak of dermatitis. Prior to that
time there were washroom facilities with individual wash
basins, shower stalls and toilets available in the main
shops, immediately adjacent to the ‘‘old roundhouse’’ where
most of the roundhouse employees kept their clothes and
equipment. In the roundhouse itself at first there was
only running cold water. Late in 1949 both hot and cold
running water were made available there. Outside the sec-
tion of the roundhouse where plaintiffs worked, about 50
feet away, was a washroom with hot and cold water, wash-
stands and showers. There was a conflict in the evidence
as to who were permitted the use of this washroom. Kern
testified that the reason the roundhouse employees did not
like to use that washroom was that it was also used by
yard and other employees, whom Criche referred to as
‘‘muckers.’’ None of the plaintiffs used the washing fa-
cilities available to them prior to the outbreak of their
dermatitis. Crowley washed only at the noon hour. Kern
did not wash with soap and water, but used kerosene and
43
waste to clean his hands, a practice which Dr. Schwartz
testified was more likely to cause dermatitis 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, Crowley used the protective creams
only two days, and used the detergent but not the scrubber.
Kern used the protective creams only half a dozen times
and he never used the corn meal scrubber. Criche has
never used these preventatives.
Dr. Cobin, defendant’s dermatologist, testified that it
had been known for 22 years that certain oils would produce
dermatitis. When he saw Kern and Criche he knew they
had been in contact with fuel oil. Dr. Meadows diagnosed
the cases as contact dermatitis from fuel oil. It was not
until January, 1950, that the defendant took preventive
steps to publicize the danger from working with diesel
fuel oil. Dr. Bennett testified that since 1927 it was known
that petroleum in certain concentrations could cause skin
eruptions. He knew prior to 1947 that rubber gloves were
proper prophylactics for exposure to fuel oils. Dr. Schwartz
and others had written a book in 1939 containing a discus-
sion on ‘‘Petroleum Dermatitis.’’ It was known for many
years and publicized by pamphlets issued by the United
States Health Service that ‘‘petroleum was a hazard as a
cause of dermatitis.” Dr. Schwartz testified that in 1942
he knew that petroleum and its derivatives were a cause
of dermatitis; that he had known that since 1930; that he
had compiled or prepared publications printed by the
United States Government with protective measures ‘‘in-
volving exposure to petroleum and its derivatives”; and
that he had published the first of these in 1930 and in all
there were 6 to 12 of such documents. At least 6 of such
44
pamphlets written by Dr. Schwartz were published by
the government in medical journals and in trade journals.
In Dr. Schwartz’s book, published in 1939, he wrote about
‘‘the hazard of exposure to petroleum oil and its deriva-
tives in so far as dermatitis is concerned.’’ Crowley testi-
fied that when he returned to work in February, 1948,
there were no bulletins posted with reference to the use of
diesel oil, nor were ointments or protective creams fur-
nished to him. While the defendant urged cleanliness as an
effective preventative against contact dermatitis from fuel
oil, there were no washing facilities in the roundhouse
prior to June, 1949. Wash basins and showers were not
installed until May, 1950.
In Urie v. Thompson, 337 U. S. 163, the United States
Supreme Court held that an occupational hazard was an
injury within the meaning of the Federal Employers’
Liability Act. One of the points raised in that case was
whether the trustee of the railroad knew or, by the exer-
cise of ordinary care, should have known of the danger
of silicosis arising from the conditions of employment.
The court said that the act does not define negligence,
leaving that question to be determined by the common
law principles as established and applied in the federal
courts; that the ruling in Erie R. Co. v. Tompkims, 304
U. S. 64, has no application; that what constitutes negli-
gence for the statute’s purposes is a federal question,
not varying in accordance with the differing conceptions
of negligence applicable under state and local laws for
other purposes; and that federal decisional law formulat-
ing and applying the concept governs. The court quoted
with approval from Sadowski v. Long Island R. Co., 292
N. Y. 448, 456, the statement that ‘‘ordinary care must
be in proportion to the danger to be avoided and the:
45
consequences that might reasonably be anticipated from
the neglect.’’ In the Urie case the court said further (186) :
‘“‘In our view, when the employer’s negligence im-
pairs or destroys an employee’s health by requiring
him to work under conditions likely to bring about
such harmful consequences, the injury to the employee
is just as great when it follows, often inevitably,
from a carrier’s negligent course pursued over an
extended period of time as when it comes with the
suddenness of lightning.’’
The question presented by defendant’s motion for judg-
ment notwithstanding the verdict is whether there is any
evidence fairly tending to prove the cause of action. The
court accepts as true, evidence in favor of the plaintiff
and gives him the benefit of all favorable inferences that
might reasonably be drawn therefrom. Halloran v. Chi-
cago & N. W. Ry. Co., 327 Ill. App. 217, (Abst.) ; O’Neal v.
Caffarello, 303 Ill. App. 574. In Blair v. Baltimore & Ohio
R. Co., 323 U. 8. 600, the Federal Supreme Court said
that to deprive railroad workers of the benefit of a jury
trial in close or doubtful cases is to take away a goodly
portion of the relief which Congress has afforded them,
citing Bailey v. Central Vermont Ry. Co., 319 U. 8. 350,
354. In Lavender Adm. v. Kurn et al., 327 U. 8. 645, the
court said (653): ‘‘Only when there is a complete absence
of probative facts to support the conclusion reached does
a reversible error appear.’’ In Ellis v. Union Pacific R.
Co., 329 U. 8. 649, the court said (653):
“‘The Act does not make the employer the insurer
of the safety of his employees while they are on duty.
The basis of his liability is his negligence, not the
fact that injuries occur. And that negligence must be
‘in whole or in part’ the cause of the injury. * ° °
Whether those standards are satisfied is a federal
question, the rights created being federal rights. * * *
46
The choice of conflicting versions of the way the
accident happened, the decision as to which witness
was telling the truth, the inferences to be drawn
from uncontroverted as well as controverted facts,
are questions for the jury.”
The question at issue in this case was recently decided
by the Second Circuit of the United States Court of
Appeals in k oung v. Pennsylvania R. Co., 197 F. (2d) 727.
There, an action by a dining car waiter to recover damages
for a contact dermatitis on his hands and arms alleged to
have been caused by the use of three well-known prod-
ucts supplied by his employer for cleaning and sterilizing
the dining car equipment, resulted in a verdict in plain-
tiff’s favor for $3,500. Under Rule 50 (b) of the Federal
Rules of Civil Procedure the verdict was set aside and
ii dgment entered in favor of the defendant. Plaintiff's
dical evidence showed that these three products were
irritants, and if used for a prolonged period would pro-
duce dermatitis. The Court of Appeals, in reversing the
judgment and reinstating the verdict, said (727):
‘‘From the evidence the jury could find that the
plaintiff was exposed to the harmful effects of the
above named irritants for long periods of time and
that such exposure caused his injury. On the subject
of negligence the jury was instructed that for the
plaintiff to recover they must find that the use of the
three cleansing agents created a risk of injury to the
plaintiff which a reasonable person would have
guarded against, and that the defendant did not take
such measures to guard against that risk as would
have been taken by a reasonably prudent man. Al-
though there was no evidence that any other em-
ployee of the defendant had ever been similarly af-
fected and representatives of the manufacturers of
the cleaning products testified that they were widely
used for the same purposes for which the defendant
used them and no such injury had ever occurred 80
far as they knew, we think a jury question was pre-
-_
47
sented. The plaintiff testified that he visited the de-
~ fendant’s medical department at various times when
the rash showed on his hands and the defendant’s re-
sponse to interrogatories acknowledged that the medi-
cal examiner of the railroad knew that the plaintiff
claimed to be suffering from a dermatitis of unde-
termined cause. Although the proof was far from
strong, we think it was error to set aside the verdict.”
Defendant calls our attention to the fact that this was a
per curiam opinion, one judge dissenting, and argues
that the opinion is neither controlling nor persuasive.
Defendant also calls attention to the rule that only deci-
sions of the Federal Supreme Court are controlling under
the federal statutes, citing Lewis v. Braun, 356 Ill. 467;
Kenna v. Calumet, Hammond ¢ Southeastern R. Co., 206
Ill. App. 17, 26. Defendant exhibits as an appendix to its
reply brief the briefs of both parties in the Young case
and states that from the briefs it is apparent that the
presentation was most inadequate. We observe that it
was maintained that it ‘‘cannot be held that the furnish-
ing of these products to the plaintiff for use by him in his
work constituted negligence on the defendant’s part unless
the Railroad can be charged with notice that one or more
of these products was likely to cause injury to the plain-
tiff or to someone doing the same or similar work,” and
that ‘‘there is no evidence on which to predicate such
notice.’’ In that brief counsel for the railroad, calling at-
tention to the rule that liability arises from negligence
and not from injury, said that the record of the case ‘‘is
completely void of any evidence that any other dining car
employee of the defendant, or for that matter, anyone
else ever incurred contact dermatitis’? through the use
of the polish or other solutions used by the plaintiff. In
our opinion the briefs in the Young case adequately pre-
sented the question before us.
mrs
48
In Baumgariner v. Pennsylvania R. Co., 292 Pa. 106,
140 A. 622, a Federal Employers’ Liability Act case, the
court sustained a verdict for the plaintiff. In that case
it was alleged that the decedent met his death by being
fatally poisoned by monoxide gas arising from hot ashes
im a pit from which the decedent was required to shovel
the ashes. The court said (110):
‘se * * and the master is presumed to know the
nature and qualities of the materials he 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 ac-
quaintance 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.”’
In Harvey v. Welch, 86 N. H. 72, 163 A. 417, an action to
recover damages for injuries sustained by plaintiff in
using an oxalic acid solution in cleaning automobile ra-
diators, the court said (73) :
‘‘The argument that the defendant had no actual
knowledge as to the physiological effect of oxalic acid
fumes, if well founded in fact, is not effective in law
to absolve him from liability. Being under a positive
duty to exercise care for the safety of his servant,
he was bound to make reasonable inquiry for the
purpose of informing himself of the natural conse-
quences of using the material which he furnished. A
master ‘must take into account the properties of
such substances as he employs for the purposes of his
business and the operation of familiar physical laws
upon these substances.’ ”’
In the instant case the jury was instructed that the
burden was upon each of the plaintiffs to prove by a pre-
ponderance of the evidence that prior to the time he con-
tracted his dermatitis the defendant had actual knowledge
of or, in the exercise of reasonable care, would have known
Kee
49
that the plaintiff or any other employee similarly em-
ployed, was reasonably likely to contract a dermatitis
from such contact that he might reasonably be expected
to have with the oils used on or about the diesel locomo-
tives. In our opinion, whether the defendant could or
might have known of the dangers to the plaintiffs from
the exposure to the diesel oils and chromates, was a ques-
tion of fact for the jury. We have come to this determina-
tion after a careful reading of the transcript of the evi-
dence, the briefs and the cases dealing with the proposi-
tion. It is significant that when Dr. Meadows first saw
Crowley on December 22, 1947, he diagnosed his condi-
tion as contact dermatitis from diesel oils. He made a
similar diagnosis as to Kern and Criche. There is evi-
dence that defendant could or might have known that
repeated or continual contact with diesel fuel and lubri-
eating oils and with chromate solutions would cause der-
matitis. There is evidence that notwithstanding this knowl-
edge the defendant took no preventive measures until
after plaintiffs had contracted dermatitis. We are of the
opinion that the court was right in overruling defendant’s
motions for judgment notwithstanding the verdict.
Defendant argues that the court erred in admitting the
medical reports made out by Dr. Meadows and trans-
mitted to Dr. Bennett because they are hearsay and there-
fore incompetent and inadmissible. The reports were of-
fered to prove that the defendant knew, through its own
doctors, that diesel fuel oil caused the dermatitis with
which plaintiffs were afflicted. These reports were prop-
erly received in evidence as admissions again interest.
Defendant asserts that the court erred in permitting ques-
tions concerning medical publications on dermatitis. Plain-
tiffs’ counsel questioned the medical witnesses as to
whether they were familiar with certain medical publica-
ss
50
tions. There was no attempt made to show that any of
the publications mentioned were in general circulation and
usage. In Ullrich v. Chicago City Ry. Co., 265 Ill. 338,
the court said (341):
‘‘The law is well settled in this State that scientific
books may not be admitted in evidence before a jury,
and that such books cannot be read from to contradict
an expert witness except where such expert assumes
to base his opinion upon the work of a particular
author, in which case that work may be read in evi-
dence to contradict him.’’
We are of the opinion that the court erred in permitting
questions concerning medical publications on dermatitis.
Inasmuch as there is strong support in the record for the
verdicts on the question of liability, we do not believe that
the judgments should be reversed and the cause remanded |
for the error. Under all the circumstances we do not
think that defendant was harmed by the admission of the
evidence.
Finally, defendant urges that the verdicts are so exces-
sive as to require a new trial in the interest of justice. We
agree that the verdicts are excessive. Crowley lost only
46 days from work before he insisted upon returning to
work in the roundhouse against the advice of all the
doctors he had seen up to that time. His wage loss to that
date was $575. He was warned that if he insisted upon
his right to return to work in the roundhouse he did 80
not at the direction or insistence of defendant, but of his
own accord. On February 19, 1948, he returned to the job
in the roundhouse, which he knew was the cause of his
condition and persisted 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 senior-
ity. The folly of his course of conduct is made clear
by contrasting his case with those of Kern and Criche.
51
They transferred to jobs in the back shop. Kern, after
transferring, lost only 13 days from work on account of
his dermatitis in 24% years. At the time of the trial Kern’s
and Criche’s dermatitis was mild and in the opinion of
Dr. Robin was not permanent and was curable. As the
result of continuing to work in the roundhouse and failing
to follow the preventive measures directed by the defend-
ant, Crowley lost an additional 250 days or more from
work on account of his dermatitis and in the opinion of
Dr. Robin, because of the length of time and the fre-
quency of exposure, his condition is now permanent.
Crowley’s wage loss was somewhere between $4,000 and
$5,000. His only out-of-pocket expense was about $200.
Section 53, 45 U S C A, provides that the fact that an
employee may have been guilty of contributory negligence
shall not bar a recovery, but the damages shall be dimin-
ished by the jury in proportion to the amount of negli-
gence attributable to such employee. We are satisfied that
when Crowley knowingly remained in contact with the
source of his occupational disease and failed to use the
means provided for protection against the hazards, he
was guilty of contributory negligence as a matter of law.
The record does not support a verdict for $42,800. There-
fore, the judgment of the Superior Court of Cook County
is affirmed as to John Crowley on the filing of a remittitur
by him in the sum of $22,800 in the office of the clerk of
this court within 10 days; otherwise, the judgment as to
that plaintiff is reversed and the cause remanded to the
Superior Court for further proceedings consonant with
this opinion.
Following the initial outbreak of his dermatitis, Kern
lost 90 days from work. Later he lost 13 more days. His
total wage loss on account of his dermatitis is approxi-
mately $1,500. Criche lost 83 days from work following
the initial outbreak of his dermatitis. His subsequent wage
52
loss, including the time lost on account of an accidental
injury to his right hand, was about 50 days. His entire
wage loss is approximately $2,000. Dr. Robin, testifying
for plaintiffs, had no opinion whether Kern’s condition
which was ‘‘fairly mild at the time of trial,’’ or Criche’s
condition which was ‘‘approaching normality,” was per-
manent or not. He thought that if they would each avoid
further contact with the irritating substances, their con-
dition might be entirely cured. Under the testimony there
can be no award of damages for either of these men on
the theory of permanency of their injuries. There was
no evidence of any monetary loss to either Kern or Criche
other than their wage loss. We think that the verdicts of
$28,900 and $19,500 in favor of these two plaintiffs are
excessive. The verdicts in favor of Crowley and Criche
were more than ten times their monetary damages and -
Kern’s was more than twenty times his loss. The judg-
ment of the Superior Court of Cook County is affirmed
as to Charles Kern on the filing of a remittitur by him in
the sum of $18,900 in the office of the clerk of this court
within 10 days; otherwise, the judgment as to him is re-
versed and the cause remanded with directions to proceed
in a manner consonant with the views expressed. The
judgment of the Superior Court of Cook County is affirmed
as to Richard T. Criche on the filing of a remittitur in
the sum of $9,500 in the office of the clerk of this court
within 10 days; otherwise, the judgment is reversed and
the cause remanded with directions to proceed in a manner
consonant with the views expressed in this opinion.
JUDGMENTS AFFIRMED WITH
REMITTITURS:
OTHERWISE, JUDGMENTS REVERSED
AND CAUSES REMANDED WITH DIRECTIONS.
NIEMEYER, P. J., and FRIEND, J., Concur.
JUDGMENT oF THE ApPpELLATE CouRT
1. Order of March 8, 1954:
On the 8th day of March, A. D. 1954, it being one of
the days of the February Term A. D. 1954, the following
order was entered of record in said cause, to-wit:
John Crowley, Charles Kern and
Richard T. Criche,
Appellees
Appeal from the
No. 46096 vs. > Superior Court
Elgin, Joliet and Eastern Railway| f Cook County.
Company, a corporation,
Appellants |
On this day came again the said parties, and the Court
having diligently examined and inspected, as well the record
and proceedings aforesaid, as the matters and things
therein assigned for error, and being now sufficiently ad-
vised of and concerning the premises, are of the opinion
that in the record and proceedings aforesaid, and in the
rendition of the judgment relating to John Crowley, certain
Appellee in said cause, there is manifest error insofar as
said judgment exceeds in the amount the sum of Twenty
Thousand Dollars ($20,000.00).
Therefore, it is considered by the Court that upon the
said John Crowley, certain Appellee, executing and filing
in said cause within 10 days from this date a remittitur
in the sum of Twenty-Two Thousand Eight Hundred Dol-
lars ($22,800.00), that said judgment relating to John Crow-
ley be affirmed as to the remainder, namely, the sum of
Twenty Thousand Dollars ($20,000.00), otherwise that said
judgment be reversed and cause remanded with directions.
54
And the Court being also of the opinion that in the
record and proceedings aforesaid, and in the rendition of
the judgment relating to Charles Kern, Certain Appellee
in said cause, there is manifest error insofar as said
judgment exceeds in the amount the sum of Ten Thousand
Dollars ($10,000.00).
Therefore, it is considered by the Court that upon the
said Charles Kern, certain Appellee, executing and filing
in said cause within 10 days from this date a remittitur
in the sum of Eighteen Thousand Nine Hundred Dollars
($18,900), that said judgment relating to Charles Kern be
Affirmed as to the remainder, namely the sum of Ten
Thousand Dollars ($10,000.00), otherwise that said judg-
ment be reversed and cause remanded with directions.
And the Court being also of the opinion that in the
record and proceedings aforesaid, and in the rendition
of the judgment relating to Richard T. Criche, certain Ap-
pellee in said cause, there is manifest error insofar as said
judgment exceeds in the amount the sum of Ten Thousand
Dollars ($10,000.00).
Therefore it is considered by the Court that upon the
said Richard T. Criche, certain Appellee, executing and
filing in said cause within 10 days from this date a remit-
titur in the sum of Nine Thousand Five Hundred Dollars
($9,500.00) that said judgment relating to Richard T.
Criche be affirmed as to the remainder, namely the sum
of Ten Thousand Dollars ($10,000.00), otherwise that said
judgment be reversed and cause remanded with directions.
55
2. Order of March 15, 1954:
And afterwards on the 15th day of March A. D. 1954,
the following order was entered of record in said cause,
to-wit :
John Crowley, Charles Kern and
Richard T. Criche,
Appellees Appeal from the
No. 46096 vs. Superior Court
of Cook County.
Elgin, Joliet and Eastern Railway
Company, a corporation,
Appellants }
On this day came again the said parties, and the said
John Crowley, Certain Appellee, having remitted the
sum of Twenty-Two Thousand Eight Hundred Dollars
($22,800.00) from the amount of the judgment heretofore
entered in his behalf in the Superior Court of Cook County;
And the said Charles Kern, Certain Appellee, having re-
mitted the sum of Eighteen Thousand Nine Hundred Dol-
lars ($18,900.00) from the amount of the judgment hereto-
fore entered in his behalf in the Superior Court of Cook
County; And the said Richard T. Criche, Certain Appellee,
having remitted the sum of Nine Thousand Five Hundred
Dollars ($9,500.00) from the amount of the judgment here-
tofore entered in his behalf in the Superior Court of Cook
County, in accordance with the opinion of this Court here-
tofore filed in said cause:
Therefore, it is considered by the Court that the judg-
ment of the Superior Court of Cook County, rendered in
behalf of John Crowley, Certain Appellee, be Affirmed as
to the remainder, namely the sum of Twenty Thousand
Dollars ($20,000.00), and stand in full force and effect
as to that amount, notwithstanding the said matters and
things therein assigned for error,
56
And it is further considered by the Court that the judg-
ment of the Superior Court of Cook County, rendered in
behalf of Charles Kern, Certain Appellee, be Affirmed as
to the remainder, namely the sum of Ten Thousand Dollars
($10,000.00), and stand in full force and effect as to that
amount notwithstanding the said matters and things therein
assigned for error.
And it is further considered by the Court that the judg-
ment of the Superior Court of Cook County, rendered in
behalf of Richard T. Criche, Certain Appellee, be Affirmed
as to the remainder, namely the-sum of Ten Thousand
Dollars ($10,000.00), and stand in full force and effect as
to that amount, notwithstanding the said matters and things
therein assigned for error.
And it is further considered by the Court that the said
Appellees recover of and from the said Appellant, their
costs by them in this behalf expended, to be taxed, and
that they have execution therefor.
3. Order denying leave to appeal:
Unrrep Srares or AMERICA
State of Illinois }
Supreme Court §
At a Term of the Supreme Court, begun and held in
Springfield, on Monday, the thirteenth day of September in
the year of our Lord, one thousand nine hundred and fifty-
four, within and for the State of Illinois.
Present: George W. Bristow, Chief Justice; Justice
William J. Fulton; Justice Walter V. Schaefer; Justice
Harry B. Hershey; Justice Joseph E. Daily; Justice Ralph
L. Maxwell; Justice Ray I. Klingbiel; Latham Castle, At-
torney General; Harry G. Newman, Marshal. |
Attest: Earle Benjamin Searcy, Clerk.
8s.
57
Be It Remembered, that, to-wit: on the 15th day of Sep-
tember 1954, the same being one of the days of the term
of Court aforesaid, the following proceedings were, by said
Court, had and entered of record, to-wit:
John Crowley, Charles Kern and
Richard T. Criche, Petition for Leave
Respondents to Appeal from
No. 33271 vs. s Appellate Court,
Elgin, Joliet & Eastern Railway Com-| First District, 49
Petitioner :
And now on this day the Court having duly considered
the Petition for Leave to Appeal herein as well as the
record and abstract, filed in support thereof, and being
now fully advised of and concerning the premises, doth
overrule the prayer of the petition and denies Leave to
Appeal herein.
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.
I, Earle Benjamin Searcy, Clerk of the Supreme Court
of the State of Illinois and keeper of the records, files and
Seal thereof, do hereby certify that the foregoing is a true
copy of the final order of the said Supreme Court in the
above entitled cause of record in my office.
In Witness Whereof, I have hereunto subscribed my
name and affixed the Seal of said court this 30th day of Sep-
tember, 1954,
/s/ Earle Benjamin Searcy
Clerk, Supreme Court of
Illinois.
(Seal) :
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.