89 F.2d 353 (2nd Cir. 1937), 293, Pieczonka v. Pullman Co.

Docket Nº:293.
Citation:89 F.2d 353
Case Date:April 05, 1937
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 353

89 F.2d 353 (2nd Cir. 1937)




No. 293.

United States Court of Appeals, Second Circuit.

April 5, 1937

In action for wrongful death of employee contracting silicosis in sandblasting operations, jury in determining whether employer furnished fit appliances were not bound to accept practices of other employers as conclusive.

Page 354

William L. Clay, of Rochester, N.Y. (Edward R. Murphy, of Rochester, N.Y., on the brief), for appellant.

Locke, Babcock, Hollister & Brown, of Buffalo, N.Y. (Evan Hollister, of Buffalo, N.Y., of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the plaintiff from a judgment for the defendant, entered on the verdict of a jury, in an action to recover for the death of her intestate due to silicosis, contracted while in the defendant's employ. The errors relied upon are in the judge's charge. The defendant had a plant in East Buffalo, N.Y., where it renovated its cars; part of the renovation was repainting, and in order to repaint, the old paint had first to be removed. From 1913 until September 12, 1931, the deceased was a sandblaster in this work, which was done either in a yard in the open air, or under a shed without sides. 'Sandblasting' is driving sand at high speed by compressed air through the nozzle of a hose, out of which it comes in a cloud or fog, which envelopes the head of the operator. Unless protected, he must breathe in this dust and in time he contracts a disease of the lungs known as 'silicosis,' which is incurable, and, if continued, fatal. For the most part the cars to be scoured were taken to pieces and the parts laid on the ground; but about 10 per cent. of the deceased's work was in skeleton cars stripped down to the frame, the roof open and all the windows out, the operator working along the aisles. The evidence, though disputed, would have justified a jury in findings as follows. In 1913, when the deceased began to work, the defendant furnished him with what was known as a 'sponge respirator,' a guard over the nose and mouth, containing a damp sponge, through which all air had to be breathed in, being breathed out through a one-way valve at the side. Goggles, and a hood to be thrown over the head, completed this guard. It was the best apparatus known at that time, and was continued in use until the spring of 1928 when a new type appeared, consisting of a mask worn over the fact, into which air was forced through a pipe attached to the air pressure of the sand blast. Thus the air breathed did not come from the operator's surroundings, and the air current in the mask was always from the inside out. The deceased had one or the other of these masks from the time of their appearance until he left the defendant's

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employ on September 12, 1931; but he repeatedly refused to use them as directed. He was constantly found without them and reprimanded by the foreman for his negligence; he would put them on, but take them off again as soon as the foreman left.

The plaintiff's cause of action was based primarily on section 299(2) of the New York Labor Law (Consol. Laws, c. 31), which required that 'all machinery creating dust * * * shall be equipped with proper hoods and pipes connected to an exhaust fan of sufficient capacity and power to remove such dust. ' This subdivision, she argued, was not limited to workrooms, like subdivisions one and three of the same section; it applied to work done in the open air as well. In such cases the parts to be scoured should be put into closed cabinets with an open window through which the nozzle could reach. The workman should stand outside and watch his work through the window, and the dust would be sucked away from the cabinet. One witness testified that in some places the work was done in this way. As to the skeleton cars, they should be run into an enclosure where fans could operate. The State Industrial Board had passed rule 741 as follows: 'Dust * * * created in quantities tending to injure the health of employees in * * * any business * * * which involve(s) the * * * use of' silica 'shall be removed by means of suction devices as far as practicable at the...

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