Downing v. Oxweld Acetylene Co.

• Decision Date: 21 December 1933
• Docket Number: No. 4.,4.
• Citation: 169 A. 709
• Parties: DOWNING v. OXWELD ACETYLENE CO.
• Court: New Jersey Supreme Court

169 A. 709

DOWNING

v. OXWELD ACETYLENE CO.

No. 4.

Supreme Court of New Jersey.

Dec. 21, 1933.

Appeal from Court of Common Pleas, Essex County.

Action by Anthime Downing against the Oxweld Acetylene Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Kellogg & Chance, of Jersey City, for appellant.

Edward G. Burke, of Newark (Arthur F. Mead, of Newark, of counsel), for respondent.

HEHER, Justice.

Respondent sued to recover damages sustained, it is said, as the result of the negligence of appellant, his employer, in failing to provide him with a reasonably safe place to work. The complaint, stating a cause of action under the common law, charged that respondent, whose work was the repairing and testing of blowpipes, suffered disease as the result of exposure to noxious gases, fumes, and other injurious matter. At the trial respondent claimed that his diseased condition was the result of carbon bisulphide and carbon monoxide poisoning. There was a verdict for respondent, and this appeal is from the judgment entered thereon.

Appellant's first point is that the trial judge erred (1) in denying its motion for a nonsuit, and (2) in refusing to direct a verdict for appellant

It is insisted that there was no evidence of negligence on the part of appellant. We think there was. Respondent in 1928, at the age of twenty-eight years, and apparently in good health, entered the employ of appellant, who was engaged in the manufacture of equipment and appliances for the use of acetylene. For a time respondent served in the capacity of a polisher, and later was assigned to the work of repairing and testing blowpipes. It was necessary to use acetylene in testing the appliances manufactured by appellant

There was evidence tending to establish the following matters of fact: Carbon bisulphide gas was present in the workroom to which respondent was assigned. There was some carbon monoxide also. These are poisonous gases. They were generated in the testing processes of appellant. The ventilation was inadequate to carry off these poisonous gases and protect respondent from physical injury therefrom.

It is conceded that these are poisonous and extremely harmful gases "when present in the proper concentration." It is appellant's contention that these gases were not present in such concentration as to physically injure respondent. But there was evidence that respondent's physical condition was the result of carbon bisulphide and carbon monoxide poisoning. Moreover, one of appellant's experts agreed that, while small quantities of these gases "in themselves are harmless, if repeated continuously," they "would cause damage."

There was ample evidence of a lack of proper ventilation. Appellant, apparently, conceived it to be its duty to ventilate the workroom. It is insisted that the fan installed was one of "a standard type used for certain classes of ventilation." But the evidence, particularly as to the movement of the smoke, was sufficient to warrant an inference either that the ventilation was inadequate, or the fan was not in proper working order. One of appellant's experts stated that if the smoke rose to the ceiling and dropped again, as some of the witnesses said, the ventilation was "inferior." These motions were therefore properly denied.

In passing upon motions to nonsuit and for the direction of a verdict, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom. Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. Lipschitz v. N. Y. & N. J. Produce Corp., 111 N. J. Law, 392, 168 A. 390.

It is next urged that the trial judge erred in refusing to nonsuit and direct a verdict for appellant on the ground that respondent had assumed the risk of the alleged injury. As was said by Chief Justice Gummere, in Rogers v. Roe & Conover, 74 N. J. Law, 615, 66 A. 408, 409, 13 L. R. A. (N. S.) 691: "It is not the obviousness of the physical situation or condition that charges the servant with the assumption of the risks which arise from it, but the obviousness of the dangers which the physical condition or situation produces." This distinction is made in a case relied upon by appellant, Ducjack v. New Jersey Zinc Co., 104 N. J. Law, 575, 141 A. 791, 792. Mr. Justice Kalisch, speaking for the court of the last resort, said: "It goes without saying that there is no analogy between a case of a latent danger, lurking in a mine from gases or other noxious or hurtful causes of which a plaintiff had no notice...