# Petitioners Brief — United States Gypsum Co. v. Galeota > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0902%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1942 - **Citation:** 315 U.S. 813 ## Text 5 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 6 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 é a E 3 re 7 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 8 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 . 9 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 10 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 11 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 12 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 13 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- 14 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 15 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. 17 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. 18 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 — 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0902%3A2. Public record. Not legal advice.