Jacque v. Locke Insulator Corporation

• Decision Date: 30 April 1934
• Docket Number: No. 68.,68.
• Citation: 70 F.2d 680
• Parties: JACQUE v. LOCKE INSULATOR CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

70 F.2d 680 (1934)

JACQUE v. LOCKE INSULATOR CORPORATION.

No. 68.

Circuit Court of Appeals, Second Circuit.

April 30, 1934.

John D. Sullivan, of Rochester, N. Y. (John F. Thomas and Francis C. Wickes, both of Rochester, N. Y., of counsel), for defendant-appellant.

William L. Clay, of Rochester, N. Y., for plaintiff-appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This action was by the administratrix of Joseph A. Jacque to recover damages from the defendant, a corporation engaged in the manufacture of insulator equipment at Victor, N. Y., for negligence in failing to provide her deceased husband with a safe place to work whereby he contracted silicosis, which was a contributing cause of his death. The amended complaint alleged that the defendant was negligent in permitting silicate dust to come into close proximity with the decedent and in failing to furnish him with necessary safety apparatus in connection with his work so as to prevent the entry of particles of silica and sand in the respiratory tract and lungs, whereby he contracted silicosis and disease and thereafter died as a result of the same. It also alleged that the defendant failed to comply with the requirements of the Labor Law of the state of New York (Consol. Laws, c. 31) which had to do with ventilation and dust removal and dust protection, particularly the provisions of section 299, which requires the employer to provide: (a) Sufficient means of ventilation; (b) a proper exhaust system to remove the silica from contact with the employees; (c) to provide protective equipment such as respirators to be used by the employees while at work whenever the atmosphere is polluted with poisonous dust.

The principal defense asserted on this appeal is that the death of Jacque was not proximately caused by the fault of the defendant.

The defendant, Locke Insulator Corporation, was engaged in the manufacture of porcelain insulators which are made of a mixture of

                  Feldspar .................   32.36 per cent
                  Flint ....................   21.59 per cent
                  China clay ...............   19.65 per cent
                  Ball clay ................   26.38 per cent
                                               _______________
                  A total of materials .....   99.98 per cent
                

Jacque was a workman at defendant's plant who operated a series of machines consisting of three ball mills that were on the ground floor and were loaded from a chute descending from the second floor. The upper part of this chute was made of wood, the central portion of canvas, and the lower portion, which entered the ball mill, of steel. The interposition of the canvas between the two ends of the chute enabled it to be moved up and down so that the steel end could be hooked to the ceiling when it was not in use. The steel end entered an opening in the ball mill in which the flint, feldspar, and clay were ground by the rotation of the stones of the mill in order to make the porcelain. The ingredients were piled on the floor above the mill. When it was ready to be charged, Jacque unhooked the steel end of the chute from the ceiling and inserted it in the aperture in the mill. Upon a signal from him to the man on the next floor, the latter would pull a chain that opened an iron plate or trap on that floor and thus dump the feldspar, flint, and clay through the trap and down the chute into the ball mill. According to the plaintiff's testimony there was an opening around the chute at the place where it entered the mill due to a loose fitting joint, and through this opening dust from the powdered flint was emitted as the load was discharged into the mill. While defendant's foreman testified that the chute fitted tightly, he admitted that there were spaces between the chute and the edge of the aperture through which dust came almost every time the mill was charged. There were three mills which Jacque operated on the ground floor of the factory, and when it was in full operation they were charged four times a day. The plaintiff's witness Birkett testified that, when a load was dumped, the dust would spread all through the room where Jacque was working. There was likewise testimony that the floor of the room above was old and defective and that dust from the powdered flint piled in that room would come down through holes. Moreover, there was testimony that dust would not only be disseminated when the trap in the floor was opened and the contents descended, but that about 40 per cent. of the load remaining would have to be shoveled in, so that still more dust would then escape. Birkett testified that there was thick dust all about where Jacque worked and upon his person as well. While there doubtless was exaggeration as to the extent of the silica dust and both Birkett and Forte, who supplied the evidence as to its diffusion in the mill, were biased and hostile witnesses, there was sufficient evidence for a jury to find that the chute did not fit tightly at the point where it entered the apertures in the ball mills and that silica dust came through these spaces and at times through openings in the floor above.

The defendant took no steps to prevent the diffusion of the silica dust in the room where Jacque worked and did not furnish him with a respirator or give him any instructions as to the danger of poison from this extraneous substance, or as to how to avoid taking it into his lungs. It is undisputed that no exhaust system was installed in the factory to carry away the dust so that the workmen would not breathe it in, and the testimony that such an exhaust system was practicable, though perhaps not very convincing, was sufficient to go to the jury. Moreover, whether an exhaust system was practicable or not, we can have no doubt that the ceiling could and should have been made tight so that no silica dust would come through from the floor above and that any space between the chute and the edges of the openings in the ball mills should have been eliminated or made entirely impervious to the passage of dust.

We think that the verdict sufficiently established that silica dust escaped into the room and Jacque inhaled it because the defendant (a) neglected to install a proper exhaust system as required by section 299, subdivisions 2 and 3 of the Labor Law of the state of New York; (b) neglected to prevent the escape of such dust by other means; and (c) neglected to supply Jacque with a...