Hatcher v. Globe Union Mfg. Co.

• Court: Washington Supreme Court
• Writing for the Court: STEINERT, J.
• Citation: Hatcher v. Globe Union Mfg. Co., 170 Wash. 494, 16 P.2d 824 (Wash. 1932)
• Decision Date: 14 December 1932
• Docket Number: 23883.
• Parties: HATCHER v. GLOBE UNION MFG. CO.

16 P.2d 824

170 Wash. 494

HATCHER v. GLOBE UNION MFG. CO.

No. 23883.

Supreme Court of Washington

December 14, 1932

Department 2.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Action by Charles M. Hatcher against the Globe Union Manufacturing Company. Judgment for the plaintiff, and the defendant appeals.

Reversed and a new trial ordered.

Roberts Skeel & Holman and W. R. McKelvy, all of Seattle, for appellant.

Vanderveer & Bassett, of Seattle, for respondent.

STEINERT J.

This is an action to recover damages for personal injuries resulting from lead poisoning, alleged to have been contracted and sustained by plaintiff while in the employ of defendant. Trial was had Before the court, sitting with a jury, and resulted in a verdict and judgment for plaintiff. The case is now Before us on defendant's appeal.

Appellant operates a factory in Seattle for the manufacture of storage batteries, which are made of metallic lead and lead sulphide. Its plant consists of a single room containing about eighty-one hundred square feet, with a ceiling about fifteen feet high. There are windows on three sides of the room, and above are a number of skylights. In the room various processes in connection with the manufacture of batteries are conducted, such as molding the lead, assembling the batteries, and sawing lugs off of the battery plates. This last-named process is carried on by means of a circular saw eight inches in diameter, extending three inches above the table on which it is mounted, and revolving at the rate of thirty-six hundred revolutions per minute. Beneath, and connected with, the saw is a hopper, designed to catch and carry away the lead dust resulting from the operation. Respirators are furnished to the workmen for their use while engaged in the work.

Respondent had been in the employ of the appellant at various times since 1923. His duties, however, had for the most part been confined to work other than the sawing of lead plates although admittedly he had been around, and witnessed, the operation. About the middle of November, 1930, he was assigned to the duty of operating the saw, on part-time work. Respondent's evidence was that he first noticed the effect of the lead dust upon his system about December 15, 1930. Violent pains in the stomach and congestion in the lungs began to manifest themselves. He complained to the foreman, and was then given a respirator, but despite this protection his condition became worse and he gradually grew weaker and weaker. After a lay-off during the Christmas holidays, he felt better, but a resumption of the work renewed the symptoms above indicated, accompanied with pain in the limbs and stiffness in the joints. His condition gradually grew worse until he was compelled to quit work entirely about March 31, 1931. Respondent's evidence was to the further effect that the floor of the factory was not properly cleaned or swept, but was permitted to become dirty and full of lead dust; that, notwithstanding this, he was not supplied with a respirator until after the deleterious effect of the lead poison had begun to manifest itself. There was also evidence, either admitted or offered, to the effect that other workmen had been affected by the lead dust, and had made complaint about it, although most of this evidence was not permitted to go to the jury.

The appellant, on the other hand, produced considerable evidence to the effect that the plant was kept in proper condition, was regularly inspected by the authorities, and had been approved by them both as to ventilation and healthful working conditions; also that the workmen, including the respondent, had at all times been supplied with respirators to be used while at work in the factory.

The complaint alleged, among other things, that the defendant (appellant) well knew that the saw threw off lead particles and dust that were highly poisonous and dangerous to human beings, and that ordinary prudence required it to equip the saw with a blower or other device to carry off these lead particles and dust, but that it negligently failed to do so; it also alleged that plaintiff (respondent) was unfamiliar with the work and its incident dangers and that defendant failed to give him any warning with reference thereto. The answer contained a general denial of these allegations and also two affirmative defenses pleading contributory negligence and assumption of risk, which in turn were denied.

Appellant's brief contains many assignments of error. It first contends that its demurrer to the complaint should have been sustained because respondent's remedy was under the Workmen's Compensation Act (Rem. Comp. Stat. § 7673 et seq., as amended) and not by an action at law. We have settled this question to the contrary in Pellerin v. Washington Veneer Co., 163 Wash. 555, 2 P.2d 658, and also in Calhoun v. Washington Veneer Co., 15 P.2d 943. We adhere to the conclusions reached in those decisions, and therefore deem it unnecessary to discuss this assignment any further.

By a series of assignments appellant next raises the question of the sufficiency of the evidence to take the case to the jury, either at the close of respondent's case or at the conclusion of all the evidence. Under the evidence as we have generalized it above, the jury had the right to accept and believe respondent's version, and we are convinced that there was sufficient to make a case for their consideration.

The appellant next contends that the court erred in admitting testimony showing alterations of certain machinery particularly with reference to the installation of a blower equipment, subsequent to the time that respondent had become sick and had left its employ. Appellant also complains of the conduct of counsel in putting the same matter repeatedly Before the jury after the court in subsequent rulings had sustained appellant's objection to its further introduction. This evidence was offered on cross-examination of appellant's witnesses. We think that the court erred in admitting the testimony to the extent that it did, and that the error was aggravated by counsel's repeated attempts to introduce similar evidence after the court had declined to permit its repetition. In Bell v. Washington Cedar Shingle Co., 8 Wash. 27, 35 P. 405, 406, a similar question was presented, and the court there held that the admission of such evidence was error. In the course of the opinion the following language from the case of Columbia & P. S. R. R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405, was quoted with approval: "Upon this question there has been some difference of opinion in the courts of the several states. But it is now settled, upon much...