Grammer v. Mid-Continent Petroleum Corporation, 905.

• Decision Date: 01 May 1934
• Docket Number: No. 905.,905.
• Citation: 71 F.2d 38
• Parties: GRAMMER v. MID-CONTINENT PETROLEUM CORPORATION.
• Court: U.S. Court of Appeals — Tenth Circuit

71 F.2d 38 (1934)

GRAMMER v. MID-CONTINENT PETROLEUM CORPORATION.

No. 905.

Circuit Court of Appeals, Tenth Circuit.

May 1, 1934.

Roscoe E. Harper and R. D. Hudson, both of Tulsa, Okl. (Gentry Lee, Harper & Lee and Hudson & Hudson, all of Tulsa, Okl., on the brief), for appellant.

I. L. Lockewitz, of Tulsa, Okl. (J. C. Denton, R. H. Wills, J. H. Crocker, and J. P. Greve, all of Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

On January 2, 1920, W. J. Grammer went to work for appellee as a tank cleaner, in which work he became acquainted in a general way, with the work of cleaning high pressure stills. On April 4, 1921, he was promoted to still cleaner at his own request, a job with shorter hours and better pay. He worked steadily in that capacity until February 27, 1932. During that eleven years he was off a week with a cold, a month with stomach trouble, and a few days with an abscessed tooth. He became ill with some form of lung trouble and died July 7, 1932. His doctor diagnosed his condition as pneumoconiosis, a disease characterized by the formation of a deposit in the lungs, the growth of fibrous tissue, and caused by the inhalation of foreign matter. His doctor testified that by a process of elimination, he deduced that the death resulted from the work of cleaning stills for so many years. The doctor said:

"I found nothing in his history to explain his condition outside of the conditions under which he was employed by the Mid-Continent Petroleum Corporation."

This action was brought by his administratrix for his wrongful death, on the conventional grounds that appellee failed to provide Grammer with a reasonably safe place in which to work, reasonably safe appliances with which to work, failure to warn, to instruct, to establish rules, and to inspect. The trial court directed a verdict at the close of plaintiff's case and the principal error assigned is leveled at that ruling.

The case was tried below and presented here in a very different way from the ordinary personal injury case. Appellant's counsel tried the case on the novel but commendable theory that the jury should have all the facts, and that it made no difference in the end who called the witnesses. Working conditions were thoroughly explored from witnesses friendly and unfriendly. The cause has been briefed and argued here on two occasions, each time with vigor but fairness on both sides. Upon conference, following the first argument and a study of the record and briefs, three different ideas were held and stoutly maintained by the sitting Judges. The cause was reargued, and many points clarified by that reargument. The fairness of counsel enables us to pass lightly over many points without extended discussion, and get to the narrow but troublesome question upon which the cause must turn.

In refining crude oil, the crude is first run through "crude" stills, the residuum from which is gas oil. The gas oil is further refined in the high-pressure stills here involved. These stills are from 8 to 10 feet in diameter and 30 to 40 feet in length, with three manholes of from 24 to 30 inches in diameter, one on the front and two on the top. The stills are designed to operate on a cycle of 48 hours, that is, it should take 48 hours to complete a run. If not completed in that time, a still must lay over until the next cycle starts. This sometimes happened, but was avoided where possible.

The cycle starts when gas oil is placed in the still and the fires are lighted. The stills operate under a temperature of 690-740° F. and a pressure of 80 pounds. The fires are cut when a required percentage of distillation has been reached. The still operates under its accumulated heat and pressure for an hour or so. The contents of the still are pumped out, a task taking from 30 to 45 minutes. Live steam under pressure is then forced through the still for an hour to an hour and a half, to clean the still as dry as possible. The manhole plates are then removed, and the still is steamed with a blower ventilator that displaces, or is supposed to, all the air and gases in the still in from 1 to 3 minutes; this forced ventilation is maintained as long as the still foreman thinks necessary, but generally from an hour to an hour and a half. Then air is forced through the stills until they are cooled to the point where the still cleaners can enter, the cleaners themselves, or a straw boss among them, determining when that point is reached. Atmospheric conditions play their part in this, but in normal course, the blowers go on at five o'clock and the cleaners' tour of duty starts at seven o'clock. For a time, water was used in cooling the stills, but that was stopped because of the hazard to workers which came about by the crystallization of hot metal when too suddenly cooled.

The fires were generally cut at ten o'clock at night, which allowed nine hours for the described operations before the cleaners came to work. The rule was that twelve o'clock was the dead line for cutting the fires, and if a still was carried beyond that time, the still was not cleaned but carried over to another cycle. There is evidence that this rule was often disregarded, and stills coming off at three or four o'clock in the morning were often cleaned.

These were standard practices for distillation of sweet or low-sulphur content crudes, such as were refined by appellee. They are the "Safe Practices in Cleaning Petroleum Stills" approved by the National Safety Council, and in use for many years at appellee's large refineries until the process was displanted in 1931 or 1932. Until the present suit was filed, no occupational disease had been known to result.

The still cleaners came on duty at seven A. M., and were paid for eight hours, but their day was over when the stills were cleaned, generally by ten-thirty or eleven o'clock. There were 100 stills to be cleaned, and five gangs of eight men each to clean them. A still could be cleaned in 20 to 30 minutes. A slight computation sheds considerable light on the point, much argued, about occasionally cleaning a still that came off late — not unplated until seven o'clock as one man testified. It is argued that this was done, in violation of the rules, to prevent the economic loss of laying the still over. Let us see if there is another reason. If the fires were cut at four A. M., the latest hour mentioned, the cooling process would be complete in 7 hours and 15 minutes, taking the maximum time mentioned for each step. It would be ready, then, at 11:15 for the cleaners. The latest hour for unplating mentioned in the evidence is 7 o'clock. It takes four hours, at the maximum times mentioned, to cool after unplating, or 11 o'clock. The cleaners were paid to work until 3 o'clock in the afternoon if necessary. They could have cleaned the stills that came off late between 11:15 and 3 o'clock. But if they cleaned them before they were cool enough, they could go home. There is evidence that the gang foreman's task was to keep them out of stills that were too hot; and if stills were occasionally entered that were too hot, it was done so the cleaners could finish and get away. The stills were not entered until the boss of the gang put his head in the manhole to test the heat and sniff for gas.

The work of the cleaners was to rake down coke, burning or smoldering, that escaped the mechanical rake, and clung to the top or sides of the still, and sweep it out. The breaking up of these coke deposits gave off dust and a trace of gases. The cleaners were clothed in heavy woolen suits, wooden shoes, and were furnished with a respirator. The respirator had a fine wire mesh, designed to catch all but the finest dust, a sponge which the workmen were instructed to keep wet, and an exhaust valve.

1. Cause of Death. Among other reasons for directing a verdict, the trial court was of the opinion that there was no substantial proof that death resulted from this work. The proof is most unsatisfactory. Conceding that death resulted from pneumoconiosis, the doctor's opinion that it came from his work was formed, as he says, because he could find no other reason for it. However, pneumoconiosis concededly results from deposits of foreign material, and Grammer did work in a dust-laden atmosphere. That the doctors never knew of another still worker being so affected, and that the medical books tell of no other, goes to the weight of the evidence. Since this case was filed, many other still cleaners find themselves similarly afflicted and have testified in this case. The answers to the hypothetical questions are in stereotyped form. We think it sufficient to go to the jury. Whether a trial court would be justified in setting aside a verdict on this ground, is not before us. Prinsen v. Travelers' Protective Ass'n (C. C. A. 10) 65 F. (2d) 841, reversed on other grounds, 291 U. S. 576, 54 S. Ct. 502, 78 L. Ed. 999.

2. The Duty of an Employer. An employer is not an insurer; his duty to furnish safe working conditions is not an absolute one, although it is nondelegable; his duty is to use reasonable care to that end. Ordinarily, fulfillment of that duty is established when it appears that the employer conformed to the common usages of the industry, for one cannot ordinarily be said to be negligent if he does that which ordinary men, like situated, do. He is not bound to discard standard appliances whenever a better one is put on the market. Baltimore & O. S. W. R. Co. v. Carroll, 280 U. S. 491, 50 S. Ct. 182, 74 L. Ed. 566; Yazoo & M. V. R. R. Co. v. Mullins, 249 U. S. 531, 39 S. Ct. 368, 63 L. Ed. 754; Chicago & Northwestern Ry. v. Bower, 241 U. S. 470, 473, 36 S. Ct. 624, 60 L. Ed. 1107; Seaboard Air Line v. Horton, 233 U. S. 492, 501, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 664, 21 S. Ct. 275, 45 L. Ed. 361; ...