Fox v. Peninsular White Lead & Color Works

• Decision Date: 27 February 1891
• Parties: FOX v. PENINSULAR WHITE LEAD & COLOR WORKS.
• Court: Michigan Supreme Court

48 N.W. 203

84 Mich. 676

FOX v. PENINSULAR WHITE LEAD & COLOR WORKS.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

C.J. Lowrie and James H. Pound for appellant.

Cutcheon, Stellwagen & Fleming, for appellee.

MORSE J.

The defendant is engaged in the manufacture of paints, dry colors, Paris green, and other poisons at Detroit. About June 12, 1888, the plaintiff was employed by the defendant corporation and worked five days. He was first put to work cutting chrome yellow, a few hours. After that he was directed to take wet Paris green out of filters with a trowel, and put it in shallow tin pans on a board. After the first day he worked at stirring up the ingredients in vats cleaning out vats, and in carrying dry Paris green to the dry-room. The boiling mass in the vats was heated to a high degree, and his business was to stir it until it was thoroughly dissolved. He brings this action for damages, claiming that he was a common laborer, ignorant of the constitutents of the vats, and of the dangerous character of his employment, or that the substances handled by him were so poisonous as to endanger his health; that it was the duty of the defendant to notify him of the poisonous character of the substances used in his employment, and that the vapor arising from the boiling vats was poisonous and dangerous when inhaled, and to provide him with appliances, to-wit: rubber garments, boots, gloves, respirators, gloves, and sponges, to be used and worn by him in his employment, so as to prevent the poisonous materials, and the steam arising therefrom, from coming in contact with, and from being inhaled and absorbed into, his body and system; that defendant did not perform this duty, by which he was greatly injured and damaged. The testimony shows that the plaintiff, soon after he commenced work, began breaking out on the exposed parts of his body, and at the end of the five days had to quit work, and finally went to Harper's Hospital. There seems to be no doubt but these sores were caused by mineral poison coming in contact with his skin while in his employment with defendant. It was further claimed that this poisoning, and the inbaling of the vapor or steam from the boiling vats, caused partial paralysis of his lower limbs, and permanent injury to his health. This was denied by the defendant, and testimony of experts was given tending to show that the symptoms of paralysis, defective eyesight, and other permanent ailments were those of white lead poisoning, and not of arsenic, it being shown that he had worked in white lead works before his employment by defendant. The jury rendered a verdict for the defendant. The plaintiff brings error.

The record shows that plaintiff, by his counsel, contended that the vapors or steam that arose from the tubs or vats in which the arsenic and sulphate of copper were dissolved to form Paris green, which plaintiff inhaled, were poisonous and deleterious to human health, and in such vapor and steam would be carried small particles of the arsenic and copper which, in coming in contact with his skin, and particularly the soft spongy parts of the body, would poison and injure him, and produced the evidence of medical experts to sustain this contention; while the defendant claimed that such vapors would be composed entirely of water, and therefore harmless, and also sustained its theory by the evidence of medical experts. The court seems to have accepted the testimony of the defendant's experts as conclusive, and refused to permit the plaintiff's counsel to argue to the jury that plaintiff received any part of his injuries from the inhaling of the vapors, and directed the jury that the plaintiff could not recover upon this branch of his claim; basing his opinion upon the testimony of defendant's foreman, who gave evidence that the minerals used did not become found in vapor until they were heated to 250 deg. Fahrenheit, and stated that a heat of 150 deg. was all that was needed to manufacture Paris green. This was clearly error. It was for the jury, and not for the court, to determine which theory of the experts was the true one. It is suggested by defendant's counsel that, inasmuch as it was conceded that the pustulation or breaking out upon the body was caused by contact with the arsenic, and the court directed the jury that the plaintiff was entitled to recover his damages suffered by such pustulation, unless it was shown that the defendant notified him of the danger of the arsenic touching the body, and its poisonous character, and, under this direction, the jury found for the defendant,...