Coburn v. North American Refractories Co.
| Decision Date | 25 June 1943 |
| Citation | 295 Ky. 566 |
| Parties | Coburn v. North American Refractories Co. et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Trial. — In action against employer for death of grinder from pulmonary tuberculosis caused by silicosis, instruction on assumed risk, which instruction expressly exempted from its operation employer's negligence as set out in specified instructions, was not improper, where instruction referred only to the ordinary risks of employment when read with specified instructions outlining employer's statutory duties. KRS 338.080, 338.090, 338.100.
2. Workmen's Compensation. — Under section of Compensation Act permitting employers to include silicosis as a compensable injury when read with section denying defense of assumed risk to noncomplying employers, the penalty is imposed upon those employers who fail to accept the mandatory requirements of the act, and hence a noncomplying employer was not precluded from pleading assumed risk as a defense to action for death of grinder from pulmonary tuberculosis caused by silicosis. KRS 342.005, 342.410.
3. Master and Servant. — Instruction that employee's failure to use a respirator provided by the employer barred recovery from employer unless employee's death was not caused by his failure to do so, was not improper on ground that such failure was only prima facie evidence that employee's injury was self-occasioned. KRS 338.030(2).
4. Appeal and Error. — Where grinder had contracted silicosis prior to enactment of statute making employees' failure to use a safeguard provided by employers prima facie evidence that their injuries were self-occasioned, error of instruction that grinder's failure after enactment of statute to use respirator furnished by employer barred recovery from his employer for his death from pulmonay tuberculosis was harmless. KRS 338.030(2).
5. Trial. — In action against employer for death of grinder from pulmonary tuberculosis caused by silicosis, where most of medical testimony went no further than to establish that silicosis predisposes one to tuberculosis, instruction that such testimony "of itself" was not sufficient to establish that silicosis was the proximate cause of grinder's tuberculosis was proper, quoted phrase being equivalent to "standing alone." KRS 338.080, 338.090, 338.100.
6. Negligence. — As respects the "proximate cause" of an event, a litigant is not required to prove that which is hidden from exact observation to recover for injuries which according to the experience of mankind usually result from a given and provable antecedent cause for which the opposing litigant is responsible.
7. Death. — In action against employer for death of grinder, evidence
that a majority of individuals contracting silicosis developed and died from tuberculosis was sufficient to take to jury issue whether grinder's silicosis was the "proximate cause" of tuberculosis from which he died. KRS 338.080, 338.090, 338.100.
8. Stipulations. — Where the parties had stipulated that respirator issued by defendant employer to deceased grinder had been delivered to expert witness, his testimony relating to respirator was improperly excluded because it was not shown that respirator examined by witness was respirator furnished grinder by employer. KRS 338.030(2).
9. Appeal and Error. — Where deceased grinder had contracted silicosis before enactment of statute making employees' failure to use a safeguard provided by their employers prima facie evidence that their injury was self-occasioned, exclusion of expert testimony that unused respirator furnished grinder by his employer did not appear to have been approved, and that it might not prove sufficient, was not prejudicial. KRS 338.030(2).
10. Appeal and Error. — Where expert witness' testimony that unused respirator furnished deceased grinder by his employer did not appear to have been approved, and that expert doubted whether respirator would prove sufficient, disclosed that expert had not subjected respirator to required tests to determine its sufficiency, exclusion of expert's testimony was not prejudicial. KRS 338.030(2).
11. Appeal and Error. — Where grinder did not testify that unused respirator furnished by his employer was insufficient, exclusion of expert testimony that respirator did not appear to have been approved and that expert doubted whether it would prove sufficient was not prejudicial, notwithstanding statute enacted before grinder's death from pulmonary tuberculosis caused by silicosis, which statute made employees' failure to use safeguards furnished by employers prima facie evidence that their injury was self-occasioned. KRS 338.030(2).
12. Death. — In action against employer for death of grinder from pulmonary tuberculosis caused by silicosis, testimony that analysis of lungs of a co-worker of grinder showed that co-worker had contracted silicosis preceding tuberculosis from which he died, was incompetent in absence of proof as to similarity of conditions. KRS 338.080, 338.090, 338.100.
13. Appeal and Error. — In action against employer for death of grinder from tuberculosis caused by silicosis, exclusion of testimony that analysis of lungs of a co-worker of grinder showed that co-worker had contracted silicosis, preceding tuberculosis from which he died, was not prejudicial where grinder's administratrix obtained full benefit of testimony. KRS 338.080, 338.090, 338.100.
14. Master and Servant. — In actions against employers for deaths of employees from silicosis, the testimony may take a wide range, especially where conditions giving rise to the claimed injuries and the nature thereof are obscure. KRS 338.080, 338.090, 338.100.
15. Master and Servant. — Testimony of employer's expert that there was no silica dust hazard in plant was not incompetent on ground that conditions at plant when employer's expert made his dust counts and inspections from July, 1941, to January, 1942, were not the same as they were during deceased grinder's employment from 1936 to 1940, where testimony of plaintiff's expert was based upon analysis of dust deposited in summer of 1941 and employer offered testimony that conditions in the grinding room were substantially the same to January, 1942, as they were during grinder's employment. KRS 338.080, 338.090, 338.100.
16. Master and Servant. — In action for death of grinder from pulmonary tuberculosis caused by silicosis, evidence was insufficient to take case to jury as against employer's officials in charge of plant in which grinder was employed. KRS 338.080, 338.090, 338.100.
17. Master and Servant. — In action against employer for death of grinder from tuberculosis caused by silicosis, evidence was sufficient to take case to jury on issues of employer's failure to provide grinder with a reasonably safe place in which to work, to warn him of dangers attendant upon inhalation of silica dust, and violation of statutes requiring installation of apparatus to remove such dust. KRS 338.080, 338.090, 338.100.
18. Workmen's Compensation. — Injuries to lungs sustained as result of inhalation of emery dust, unless it is the result of an "accident," that is, an unanticipated and undesigned event occurring upon a specified date, or within a limited and identifiable period, are not compensable.
Appeal from Boyd Circuit Court.
E. Poe Harris, Leonard C. Fielder and Davis M. Howerton for appellant.
LeWright Browning and S.S. Willis for appellees.
Before Watt M. Prichard, Judge.
Affirming.
Seymour Coburn died on November 9, 1941, at the early age of twenty-nine years, six months, and eight days, the victim of tuberculosis of the lungs. He had been raised in the country, and, prior to 1936, had never worked in an industrial plant of any kind. In January of that year he went to Ashland and secured employment as a "grinder" with the North American Refractories Company, which was engaged in the manufacture of refractory brick. While sand, containing silica, was not a component part of the bricks manufactured, it was, nevertheless, used by the Company in large quantities to prevent the bricks from sticking to the molds, and later, when set to dry, to prevent the layers from sticking together. During the process of burning, in which sand was again used as a separator, some of it adhered to the edges and sides of the bricks, and many of them became warped and lost their shape. To reduce them to the proper specifications, the Company maintained a "grinder machine" consisting of two carborundum wheels approximately thirty inches in diameter, operated at high speed by electricity. The over-sized and irregular bricks were gauged and then pressed against the grinding wheels. The machine was located in a shed, and the employees who operated it were known as "grinders."
Coburn continued in this employment until December, 1940, when he was compelled to give up his work on account of ill health. His health had begun to fail during the preceding summer, and when he was finally compelled to discontinue his employment, he consulted his family physician, Dr. Harry J. Stone, who advised him to have an X-ray made and sent a sample of his sputum to a laboratory for examination. The X-ray was made on December 10, 1940, and both it and the examination of the sputum disclosed that Coburn was suffering from pulmonary tuberculosis. Eventually, he was put to bed, where he remained until his death 11 months later. It should here be noted that while the X-ray showed that Coburn was also suffering from silicosis, the death certificate disclosed only one cause of death, namely, pulmonary tuberculosis.
The original petition in this action was filed by Coburn on June 3, 1941. In it he alleged that through the negligence of his employer and its officials in charge of the plant, the individual appellees named in the caption, he had contracted diseases of the lungs and other respiratory organs, not specified, which had permanently...
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