Petitioners Brief — United States Gypsum Co. v. Galeota

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SUPREME COURT OF UNITED STATES,

Octoner Term, 1941.

Dominic GALEOTA

vs.

Unirep States Gypsum Company,

Petitioner.

PETITIONER’S BRIEF IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

The decision of the United States. Cireuit Court of

Appeals, Second Circuit, in the above entitled action, has

not yet been reported. A copy of that decision is annexed

to this brief.

This is a petition for a writ of certiorari to review

a decision of the United States Circuit Court of Appeals,

Second Circuit, affirming a judgment of the United States

District Court, Western District of New York, in favor

of the plaintiff in the sum of $8,305.08. The statutory

provision sustaining this Court’s jurisdiction is Section

240 (a) of the Judicial Code, as amended by the Act of

February 13, 1925, which provides as follows:

**Certiorari to Circuit Court of Appeals and

Court of Appeals of District of Columbia; appeal

or writ of error to Supreme Court from Circuit

Courts of Appeals in certain cases; other reviews

not allowed. (a) In any case, civil or criminal,

in a Cireuit Court of Appeals or in the Court of

Appeals of the District of Columbia, it shall be

competent for the Supreme Court of the United

States upon the petition of any party thereto,

whether government or other litigant, to require

by certiorari, either before or after judgment or

decree by such lower court, that the cause be

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certified to the Supreme Court for determination

by it with the same power and authority and with

like effect as if the cause had been brought there

by unrestricted writ of error or appeal.’’

The Questions Presented

The questions presented in this brief are:

(1) Whether under the facts hereinafter set forth, the

plaintiff was entitled to recover without having estab-

lished as an independent fact that he was exposed to

dusts which were harmful and injurious to him; and

(2) Whether the plaintiff was guilty of contributory

negligence or assumed the risk of his employment as a

matter of law.

Statement of Case

The plaintiff’s proof as to defendant’s negligence was

limited by the application of the New York State Statute

of Limitations (New York Civil Practice Act, Section 49)

to a period of three years commencing August 18, 1930.

Within this period the plaintiff worked for the defendant

in two separate places and for the following periods:

In the gypsum mine from November 10, 1930, to Febru-

ary 28, 1931, and in the limestone quarry in the spring

of 1931 for a period of six and one-half weeks, and in

the spring of 1933 for one week (fols. 623-624, 675-677).

Plaintiff had worked for defendant at separate times a

total of fifteen years before the commencement of the

period involved in this lawsuit.

The defendant’s limestone quarry and gypsum mine

are located at Oakfield, Genesee County, New York. The

quarry is on the surface and is cut into a hillside. It is

semicircular in shape, the north side being open. The

quarry face is about fifteen feet high, an overburden of

earth about ten feet thick having been removed. The face

of the quarry is about 250 feet long (fols. 672-674).

a aa Ne BN ts 3

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While working in the limestone quarry, the plaintiff’s

job was to break up into pieces small enough for loading

onto small cars the rock previously blasted from the

face. This work was done either by drilling holes into

the pieces of rock with a pneumatic jackhammer so that

they could be blasted, or by smashing them with a sledge

hammer (fol. 674).

The gypsum mine is seventy-five feet below the surface

and in 1930-1931 the workings had extended three miles

north and south and five to six miles east and west.

The mine is roughly divided into a right, west, and a left,

east, sides, the directions in the mine being relative to

the right and left of the main haulageway as one faces

south from the entrance shaft. The gypsum vein is from

three to five feet in thickness and is of uniform quality

(fols. 567-602).

The chemical formula for gypsum is C,SO,2H.0 (fol.

660), and it is No. 2 on the seale of hardness (fol. 707).

In some places in the gypsum there appears a formation

known as anhydrite, C.SO, (fol. 661). Anhydrite is

harder than gypsum but differs from gypsum only in that

the water of crystallization is absent. Above the gypsum

there is a layer of limestone rock reaching nearly to

the surface. The workmen designate this limestone rock

as roof rock (fols. 601, 711). In some places the cleavage

between the gypsum and limestone is not clean-cut and

there is a seam, a few inches in width, containing both

gypsum and limestone rock, which locally is called ash

rock (fol. 681). The roof rock and ash rock are not

drilled or blasted except in exceptional cases, and are

not removed from the mine (fols. 567-602).

The mine was developed by pushing forward triple

entries off to the left or right of the main haulageway,

running north and south. In the first instance these

entries are developed simply as rooms, twenty-two feet

wide and of the height of the gypsum vein with ten-foot

pillars between each room. The gypsum only is removed.

Later, the roof of the center entry is taken down for a

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width of nine feet, so as to give a clearance from the

floor of seven feet. This operation of taking down roof

rock is known as brushing. In this cleared entry heavy

tracks are laid and overhead wiring installed for an

electric motor road. This entry is then called a haulage-

way. One of the adjacent entries is then made into an

air course by building a separating stone wall between

it and the haulageway. These walls are called brattices

and fill in the open spaces between pillars. They are

plastered over on the haulageway side so as to make the

air course airtight (fols. 633-650). The east and west

entries are developed gradually and in 1930-1931 extended

about two miles east and west of the main north and

south. As soon as these east and west entries are devel-

oped an adequate distance, rooms are turned off them to

the north, a terminal distance of 185 feet. The gypsum

rock strata dips to the south and the water in the mine

naturally flows that way; hence, the gypsum mining is

done headed in a northerly direction to prevent the

collection of water at the working faces. Exhibit H

shows a typical plan of the development. Exhibit KE

shows the layout of the mine, and on it are indicated

the exact spots where the plaintiff worked in the mine

during 1930 and 1931 (fols. 590-594).

The mine is so constructed that it can be ventilated

by natural air currents, the bottom level of the fresh

air intake shaft being lower than the bottom level of the

air exit shaft (fol. 701). In addition, the mine is equipped

with a forced draft system. Outside air is sucked into

the mine by a fan located in a fan house on the surface

and over a shaft known as the Farnsworth shaft. This

shaft is also used as an emergency escape. The capacity

of the fan is 60,000 cu. ft. of air per minute. At the

foot of the Farnsworth shaft this air supply is divided

and sent east and west of the Farnsworth shaft through

air courses to the various places where the men are then

working. After the fresh air reaches the working places,

it is released and eseapes through old workings and

leaves the mine through the shaft by which the men

SELON OLS Oe CTC pee

NAY ANTE AREY EE SLE ASIA PVE PRAIA TEE Ti .

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normally enter and leave the mine. The draft in the air

exit shaft is always an up-draft. To prevent the fresh

air from escaping down a haulageway before it reaches

the working places, ventilating doors are hung across the

haulageways where necessary. They are hung against

the air current (fols. 767-768). The air current and air

courses are tested and measured from time to time by

using an anemometer (fols. 609-613, 633-639).

During 1930 and 1931, the fan was started in the fan

house on the surface at about 7:00 A. M. by Glenn Schultz,

an electrician who worked daily in the mine (fol. 884). It

was shut off on the surface at 4:00 P. M. by Ira H. Burr,

another electrician who worked daily in the mine (fol.

906). There was a switch at the foot of the Farnsworth

shaft by which the fan could be shut off but not started.

The purpose of this switch was to make it unnecessary

for a person ascending this shaft to move against the

down-draft of the air supply (fol. 736). The mine was

wet and pumps had to be used to control the water (fols.

593, 601, 747, 1029).

During 1930 and 1931, the gypsum mining was done only

in the daytime from 7:00 A. M. 4:00 P. M. The blasting

was done at the end of each day’s work (fol. 765). The

downed rock was removed the following day (fols. 765-

766). The work of developing haulageways, 7%. e., brush-

ing, was never done when the gypsum miners were work-

ing (fols. 665-666). It was done either at night or, when

done during the day, was done on days when gypsum

miners were not working in the mine. This division of

work was necessary since the brushing operation blocked

the haulageways at the point where brushing was being

done and prevented the use of the motor track bv electric

trains loaded with gypsum rock.

During the time affected by this lawsuit, all of the

brushing was done by a man named Nielson. Nielson was

also the one man who drilled bad roof rock, i. e., danger-

ous overhead rock, when it was necessary to do so (fols.

652-654, 851, 875).

—_— 2 SMART TE PY IRENE OLE EH RIE ATE TIES A NOL TALIM PERT SEINE ON RIT

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It was shown by plaintiff that gypsum rock contains

99.7% gypsum and .3% free silica (M@xhibit 5); that lime-

stone rock contains 2.4% free silica, 6.5% silicates, 6.5%

gypsum and 84.6% carbonates; that ash rock, 2. e., the

rock between the gypsum seam and the limestone, con-

tains from 2.1% to 3.6% free silica, 36% to 42.1% silicates

and 11% to 39% gypsum, the balance being carbonates,

i. e., limestone. There was testimony that an average

of 66% of the free silica portion of the various samples

was under 10 microns in size, that is, of course, after the

rock sample had been smashed up (fols. 375-384).

There was no proof offered concerning the actual

amount of dust in the mine at any particular time, nor

the quantity or size of free silica particles in such dust as

may have been present at any given time.

The plaintiff while he worked in the mine was a gypsum

miner and whether drilling or loading, he and the rest of

his erew were paid by the ton of gypsum rock removed

from the mine (fols. 182-183, 189).

Argument

(a) The plaintiff offered no proof to show that he was

exposed to a harmful dust, and plaintiff’s failure to estab-

lish that the dust to which he was exposed was in fact

injurious and harmful constituted a fatal omission of

proof.

The plaintiff’s claim was that while working for the

defendant in its underground mine and in its open quarry,

he was exposed to clouds of dust. At no time did he offer

any evidence to show what was in these clouds of dust.

He apparently attempted to supply this necessary in-

formation by showing the nature of the rock present in

the mine and in the quarry, and stating that the drilling

of this rock produced dust.

It was established that the vein of gypsum »resent in

the mine was from 3 to 5 feet in thickness and of uniform

LOY RO IR PRT SRNL OB NATRROS A OE NES R e

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quality; that above the gypsum the rock was limestone

and. was designated as roof rock; that in some instances,

immediately above the limestone the cleavage was not

clean-cut and there was a seam, a few inches in width,

containing both gypsum and limestone rock, which, locally,

was called ash rock.

The plaintiff claimed that all three types of rock were

drilled by him or others present while he was working,

with the result that great clouds of dust were created,

and that sufficient ventilation was not supplied to remove

this dust. As far as his work in the quarry was con-

cerned, plaintiff merely stated that he drilled the lime-

stone rock there present, and that such drilling produced

dust; that others besides himself drilled in his presence.

The proof with relation to the content of the rock be-

fore drilling was as follows: That the gypsum rock con-

tained 99.7% gypsum and .3% free silica; that limestone

rock contained 2.4% free silica, 6.5% silicates, 6.5%

gypsum, and 84% carbonates; that the ash rock, 2. e., the

rock between the gypsum seam and limestone, contained

from 2.1% to 3.6% free silica and 36% to 42.1% silicates

and 11% to 39% gypsum, the balance being carbonates.

The only proof as to the harmful quality of the materials

found in the rock was (1) that gypsum dust was not harm-

ful, and (2) that free silica dust would be harmful if

particles of 10 microns or less in size were breathed.

There was no proof as to the harmful quality, if any, of

silicates or carbonates. Presumptively, the dust of these

materials is not harmful.

It should be noted that (1) there was absolutely no

proof in this case that silica dust was in fact present in

the atmosphere, even though there was proof that there

was some possibility of rock containing as high as 3.6%

of free silica being drilled; and (2) there was absolutely

no proof as to the amount of free silica which would have

to be present in any atmosphere to make the breathing

of such atmosphere in fact harmful. It is claimed by the

petitioner that the failure of the Cireuit Court of Ap-

eS

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peals to give due regard to this omission in plaintiff’s

proof constitutes the basis for a reversal of its decision.

The mere presence of free silica in the rock present

in the mine (there was no proof that there was any

free silica present in the quarry rock), or for that matter

in such dust as may have been present in the air, is not

proof that the plaintiff was exposed to an exposure cap-

able of producing harm. This principle is clearly illus-

trated by the provisions of New York State Industrial

Bulletin, No. 33, effective May 1, 1937, which makes a

distinction between non-dangerous and dangerous concen-

trations of silica dust. Section 33-2.3 of this bulletin

provides:

‘* *Tnjurious silica dust concentration’ shall mean

dust produced from drilling silica-bearing rock

which is in excess of the following values as de-

termined by an approved dust count method.

Class I. One hundred million (100,000,000) parti-

cles per cubic foot of air, as specified in

Rule 33-2.2.

Class II. Ten million (10,000,000) particles per

yy foot of air, as specified in Rule

33-2.2.”’

Rule 33-2.2, reads:

‘¢ *Silica-bearing rock’ means any rock forma-

tion, natural or synthetic, containing as a compo-

nent part, free silicon dioxide.

‘Silica-bearing rock’ shall be divided into two

classes:

Class I. Any rock formation of substantially uni-

form geological character having free

silicon dioxide as a component part which

is known from geological studies or

otherwise can be shown by the applicant

to the satisfaction of the Industrial Com-

missioner, to run uniformly less than

ten (10) per cent by weight, of the rock

formation.

Class IT. All rock formations having free silicon

dioxide as a component part, ten (10)

ASG PERRIS IEC Ly ERRATA SGT RTS REE ERA EAT EOE ERIE LST EEE ty RRR <2

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per cent or more by weight, and all other

formation, natural and synthetic, having

a variable and unpredictable content of

free silicon dioxide.”’

These quotations from Bulletin No. 33 are used to

illustrate the fact that the actual content and the con-

centration are essential factors in determining whether

or not a dust concentration is injurious.

The report of the National Silicosis Conference, dated

February 3, 1937, reported in United States Department

of Labor Bulletin No. 3, 1937, also makes the distinction

between non-dangerous silica exposures and dangerous ex-

posures. On page 14 of the report this statement is

found:

‘‘There is evidence that for prolonged exposure

a concentration of more than 5,000,000 particles

per cubie foot of highly siliceous dust is danger-

ous. Therefore, it is now considered good prac-

tice to hold concentrations of highly siliceous dust

at 5,000,000 particles per cubic foot or less.’’

On page 29 we find:

‘‘The properties of dust which may determine

its capacity to produce damage have been shown

to be its composition, the quantity suspended in

the industrial atmosphere and its particle size.

The determination of the concentration and char-

acter of industrial dusts permit evaluation of the

extent of the dust hazard, and also serve as a

criterion of the efficiency of the devices which

have been developed for the control of the haz-

ard.

The fact that two of plaintiff’s medical witnesses were

willing to state that plaintiff had sustained a condition

known as silicosis, in response to a hypothetical question

which merely contained a statement that dust was pres-

ent and that the rock from which the dust presumably

came contained the percentages of silica shown above, does

not supply the missing proof nor make its establish-

ment unnecessary. It should be noted that the hypotheti-

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cal question did not show the actual quantity of dust

present, nor the character of that dust; and, even more

important, if one is to do as the Circuit Court suggests,

assume that silica dust must have been present if silica-

bearing rock was drilled, there was no proof as to how

much or how little of silica-bearing rock was drilled. It is

obvious that the great percentage of the rock drilled

was gypsum rock, which contained only .3% of free silica.

The necessity for plaintiff’s establishing the harmful

quality of such dust as may have been present, is not

only apparent from the standpoint of establishment of a

negligent condition but also from the standpoint of es-

tablishment of the fact that plaintiff sustained silicosis,

because in this case the testimony that plaintiff had sili-

cosis was based upon the assumption that he was ex-

posed to and did inhale silica dust.

The cases cited by the Circuit Court of Appeals on

this issue are without eny probative force, since the

question of the harmful character of the dust to which

the plaintiffs in the cited cases were exposed, was not,

and in fact could not have been raised. The dust al-

leged to have been present in the cited cases was sand

dust, i. e., silica dust, because the material producing

the dust was itself sand, 2. e., siliea. Here, that situa-

tion does not exist.

(b) The plaintiff was guilty of contributory negli-

gence or assumption of risk as a matter of law, and

his affirmative conduct defeated his right to recovery.

In a case of this kind it is unnecessary to make any

distinction, if there is in fact any real distinction, be-

tween contributory negligence and assumption of risk.

Schlemmer v. Buffalo, 205 U. S. 1, 12.

While it is true, generally speaking, whether or not

contributory negligence or, assumption of risk will de-

feat a recovery, is a question of fact for a jury, in the

instant case there was no question of fact on this issue.

SORES — ee

PIPE SPSL LIM LY EL RPTL NN TE HARE ANE FESR I RII

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The sole proof was that the plaintiff continued in his

place of employment under conditions which he knew

caused him to become sick and unable to work (fols.

153, 154, 155, 265, 266, 267, 283). The very proof by

which he sought to establish that defendant was guilty

of negligence, established his own contributory negli-

gence or assumption of the obvious risk. The jury

could not reject this testimony. It could not absolve

him from the results of his own affirmative act. Con-

tributory negligence or assumption of risk is a legal

bar in cases of this kind.

— v. Cocker Saw Co., 266 N. Y. 139,

143.

Sweeney v. Berlin & Jones Envelope Co., 101 N.

Y. 520, 524.

Cornell v. J. J. Newberry Co., 250 N. Y. App.

Div. 816.

C. O. & G. R. Co. v. McDade, 191 U. S. 64, 67, 68.

Berry v. Atlantic White Lead Co., 30 N. Y. App.

Div. 205.

Wager v. White Star Candy Co., 217 N. Y. App.

Div. 316.

Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459,

468, 469.

The statement of the Cireuit Court in its decision

that the defendant was precluded from successfully main-

taining the defense of assumption of risk, overlooked

the established fact that the risk here, if any, was open

and obvious and the plaintiff knew all about it and

knew the conditions under which he worked were harm-

ful to him.

Conclusion

It is, therefore, submitted that the plaintiff failed to

establish an absolutely essential element of his case,

t. e., to prove independently of any other fact, that the

dust which he claimed he was obliged to breathe, was in

fact, harmful, and. therefore, a cause of action was never

made out against the defendant, your petitioner.

16

It is also submitted that plaintiff's contributory negli-

gence or assumption of the obvious risk of his employ-

ment, was established as a matter of law, and such con-

tributory negligence or assumption of risk was a com-

plete bar to his recovery.

The questions here presented are fundamental in

this case and are also present in numerous other cases of

like nature pending in the United States District Court,

Western District of New York, and, therefore, a care-

ful consideration of them by this Court is warranted,

and this Court should review the decision of the United

States Cireuit Court of Appeals in order that its de-

cision may be reversed.

Dated, January 19, 1942.

Respectfully submitted,

T. CARL NIXON,

Attorney for the Petitioner.

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Annex to Brief

Opinion of Circuit Court of Appeals,

UNITED STATES CIRCUIT COURT OF APPEALS

For THE Seconp Circuit.

No. 112—October Term, 1941.

(Argued November 13, 1941. Decided December 8, 1941.)

Dominic GALEOTA,

Plaintiff-Appellee,

against

Unitep States Gypsum Company,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of New York.

From a judgment that the plaintiff recover $8,305.08

against the defendant in an action for injuries arising

from the defendant’s negligence, the latter appeals. Af-

firmed.

Before: wn Augustus N. Hand and Chase,

Cireuit Judges.

Goodwin, Nixon, Hargrave, Middleton & Devans, At-

torneys for Defendant-Appellant; W. Clyde O’Brien and

Wendell J. Brown, Counsel.

William L. Clay, Attorney and Counsel for Plaintiff-

Appellee.

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Avcustus N. Hanp, Circuit Judge:

The plaintiff Galeota, an employee of the defendant,

United States Gypsum Company, brought this action to

recover damages for injuries he claims to have suffered

because the defendant neglected to provide him with a

safe place to work, or to furnish him with devices that

would prevent him from inhaling particles of silica from

which he contracted silicosis. He sought to recover for

negligence of the defendant in failing to observe its com-

mon law obligations and also in failing to observe cer-

tain provisions of the Labor Law of the State of New

York.

Section 200 of the Labor Law of the State provides:

‘““General duty to protect health and safety of

employees.—All places to which this chapter ap-

plies shall be so constructed, equipped, arranged,

operated and conducted as to provide reasonable

and adequate protection to the lives, health and

safety of all persons employed therein. The

Board shall make rules to earry into effect the

provisions of this section.’’

Section 417 of the Labor Law provides:

‘‘Ventilation—An air current sufficient to re-

move smoke and noxious gases and to insure the

safety of every employee, shall be conducted along

every passage-way and working place.’’

Rule 557 of State Industrial Bulletin No. 12 reads as

follows:

‘*In any industry, trade or occupation or process

involving the creation of silica dust, there shall

be provided means for removing such dust at the

point of origin or preventing same from being

disseminated in the air breathed by employees in

so far as it is practicable to do so.”’

The defendant evidently supposes that we are in a

position to weigh the evidence and to reverse a judg-

ment founded on a verdict against the weight of credible

proof, but such is not the ease in the United States

Courts. We may only upset a verdict for failure of

19

proof where the verdict is without substantial evidence

to support it, as was not, in our opinion, the situation

here.

The plaintiff’s expert Jerome Cowan testified that:

‘*Silicosis is a disease caused by the inhalation of silica

or sand particles and is characterized by an absence of

fever and decreased ability to work, and an increased

susceptibility to tuberculosis, and certain characteristic

X-ray changes.’’ Cowan also testified that ‘‘the disease

is incurable because of the chemical destruction of the

lung tissue.”’

The plaintiff’s proof of the defendant’s negligence was

limited by the New York Statute of Limitations (Civil

Practice Act, Section 49) to a period of three years prior

to the bringing of this action on August 18, 1933. In

order to prevail, the plaintiff must show (1) that he had

a condition of his lungs known as silicosis, and (2) that

the condition was caused in whole or in part by negli-

gence of the defendant occurring during the six months

when he worked for the defendant in the years 1930,

1931 and 1933.

The plaintiff received a judgment for $8,305.08 in the

court below from which the defendant now appeals. We

hold that there was testimony from which the jury might

lawfully find that the plaintiff contracted silicosis and

that the disease was due to the defendant’s negligence

during the six months mentioned. Accordingly the judg-

ment should be affirmed.

The plaintiff testified that he first beeame dizzy and

had sick spells during his employment and had to lay

off work in 1930; that after going back to work he felt

sick at night, coughed and had difficulty in breathing,

felt a burning in his chest ‘“‘like needles’’ and had to

stop and rest. He added that his condition thereafter

got worse. This his physicians attributed to silica par-

ticles which he had inhaled while working as a driller for

the defendant. There was evidence that he worked in

the defendant’s gypsum mine at Oakfield, Genesee County,

* |

New York, from November 10, 1930, to February 28,

1931, and in its limestone quarry for about six and one-

half weeks in 1931, and five days in 1933.

While working in the gypsum mine he used an electric

drill on the soft gypsum and a jackhammer, operated by

air pressure on the harder rock. In the gypsum mine

there was a layer of limestone rock above the vein of —

gypsum sometimes known as roof or fire rock. In some

places there was between the vein of gypsum and the

roof rock a layer containing a mixture of limestone and

gypsum called ash rock. The mine was developed by

pushing forward entries or rooms to the left and right

of the main passage. After extracting the vein of

gypsum the roof of each entry is taken down for a width

of nine feet so as to give clearance from the floor of

seven feet and in this cleared entry to lay tracks and

install overhead wiring for an electric motor road to

make a haulageway for the removal of the gypsum. The

plaintiff testified that he used an electric drill in working

on the gypsum and a pneumatie jackhammer in dislodging

roof and ask rock. The mine was so constructed that it

could be ventilated by natural air currents and was

equipped with a forced draft system whereby outside

air was sucked into the mine by a fan located in a fan-

house above ground.

The proof indicated that the gypsum rock contained

only .3% of free silica, the limestock rock 2.4% free silica

and 6.5% silicates, and the ash rock from 2.1 to 3.6% of

the free silica and 36% of silicates. There also was testi-

mony that an average of 66% of the free silica portion

of the various samples was under 10 microns in size.

As we have said, the plaintiff’s evidence indicated that

when working in the mine he used an electric drill to re-

move the gypsum and a jackhammer to dislodge ash rock

and roof rock. In each case dust was created. When us-

ing the jackhammer he said the dust was so thick that it

looked like flour or smoke and a man could not be seen

who was but three or four feet away. He testified that

the places where he worked were sometimes so far from

NYOMI PE OLN BENE RIO CIEL URE -

21

the fan that the condition of the air was bad and he got

no ventilation. Moreover both he and some of his wit-

nesses said that the fan was shut off at ten or half-past

ten o’clock in the morning so that during most of the

working day it did not give the ventilation that should

have been furnished. Likewise it ordinarily was not oper-

ated at night so that the day did not begin with a well-

ventilated mine. In addition to this, the jackhammers

were not equipped with dust traps and when they were

used to clean out holes that were being drilled the dust

would come back into the places where men were work-

ing. No masks or respirators were furnished to the

drillers.

When working in the limestone quarry the plaintiff

used a jackhammer to bore holes in rock previously

blasted so that it could be broken up for loading. In

doing this it was necessary to bend over and lean on the

drill, with the result that his mouth was only about two

and one-half feet away from the drill hole. There would

be dust in the hole which necessarily would be forced

out by the drill and come all over the driller. The jack-

hammer had no dust trap to catch the dust, there was

no suction device to suck it away and no mask or respi-

rator for the workmen. The plaintiff said that four or

five other drillers would be working at the same time as

himself.

The defendant introduced evidence contradicting much

of the plaintiff’s proof. It was to the effect that drilling

with a jackhammer was not done by the plaintiff, that

the fan was operated at all times during working hours

and that the places where he worked were properly venti-

lated and free from silica dust. In our opinion, these

issues were for. the jury and must be regarded as set-

tled in plaintiff’s favor by the verdict.

The defendant attacks the verdict mainly on the ground

that there was no proof of the amount of free silica pres-

ent in any dust which the plaintiff inhaled. In other

words, it is argued that the plaintiff did not support the

burden of showing how much silica was in the air he

breathed and whether it was dangerous in amount. But

A

e

ADE SHE RLS PLT RE

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22

Dr. Cowan testified that there was an increased fibrosis

shown in the X-ray photographs of the plaintiff’s lungs,

that their condition was abnormal and diseased, and in

answer to a hypothetical question based on the plain-

tiff’s evidence, said that the latter was suffering from

silicosis produced by exposure to the conditions we have

mentioned. The testimony of Dr. Laidlaw and Dr. Popoff

was to the same effect. The testimony was, we think,

sufficient to go to the jury and to justify the verdict for

the plaintiff however we might have resolved the issues

were we the fact finding body. There was proof that he

was drilling in formations which contained substantial

amounts of silica from which dust was created and not

carried off, and there was also proof that a disease re-

sulted having all the characteristics of silicosis. This was

enough for submission to a jury of the cause of the dis-

ease. Its verdict concludes us. Pieczonka v. Pullman Co.,

102 F. (2d) 482 (C. C. A. 2); Jacque v. Locke Insulator

Corp., 70 F. (2d) 680 (C. C. A. 2); Downing v. Oxrweld

Acetylene Co., 169 Atl. 709 (N. J.); Bellows v. Merchants

Despatch Trans. Co., 257 App. Div. 15, aff. 283 N. Y. 591.

The defendant contends that the plaintiff was barred

from recovery by his own contributory negligence and by

his assumption of risks inherent in his employment.

There was nothing to show that the defendant instructed

this employee that inhaling the dust would result in seri-

ous danger to him. This was its duty to a day laborer

of no apparent education. Jacque v. Locke Insulator

Corp., 70 F. (2d) 680, 683. According to the plaintiff’s

witnesses there likewise was no showing that defendant

furnished him with proper appliances to avoid exposure

of silica dust or with a safe place to work. Neglect to

perform these obligations precluded it from successfully

maintaining the defense of assumption of risk. Gustav

Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368;

Dana, Adm., v. N. Y. Cent. d H. R. R., 92 N. Y. 689.

Whether the defendant was guilty of contributory negli-

gence in continuing to work after the dust had once made

him sick was a question for the jury. Bellows v. Mer-

23

chants Despatch Trans. Co., 257 App. Div. 15, aff. 283

N. Y. 591. The plaintiff denied that he knew that the

dust was dangerous or that his disabilities were due to

inhaling it (Record, pp. 52, 75 and 76).

The trial court committed no error in admitting Rule

557 of State Industrial Bulletin No. 12. The rule became

effective January 1, 1931, but the plaintiff was employed

long after that date. The rule on its face was designed to

provide safeguards against silica dust and was plainly

applicable to just such a situation as the present. Schmidt

v. Merchants Despatch Trans. Co., 270 N. Y. 287.

It is contended that there was error in excluding proof

offered by the defendant to show the cost per day of

electricity necessary to operate the ventilator fan. Pos-

sibly this should have been admitted as indicating that

the cost would have been so trifling as to render plain-

tiff’s testimony that the fan was turned off every day at

10 A. M. improbable, at least as a business economy.

But the evidential value of the proof was slight and its

relation to the issue as to whether the fan operated dur-

ing working hours so remote that we cannot regard its

exclusion as substantially prejudicial.

Judgment affirmed.