Kress v. City of Newark

• Decision Date: 26 July 1950
• Docket Number: No. A--146,A--146
• Citation: 9 N.J.Super. 70,74 A.2d 902
• Parties: KRESS v. CITY OF NEWARK.
• Court: New Jersey Superior Court — Appellate Division

Page 70

9 N.J.Super. 70

74 A.2d 902

KRESS v. CITY OF NEWARK.

No. A--146.

Superior Court of New Jersey Appellate Division.

Argued June 26, 1950.

Decided July 26, 1950.

John A. Laird, Newark, argued the cause for appellant (David Roskein, Newark, attorney).

Charles Handler, Newark, argued the cause for respondent.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

COLIE, J.A.D.

Plaintiff appeals from a judgment dismissing her action against the defendant municipality to recover damages for injuries which she sustained as a result of over-exposure while performing duties as technician in the X-ray department of the Newark City Hospital. The complaint was grounded upon the failure to provide a reasonably safe place to work.

The plaintiff's case disclosed that she was first employed at City Hospital as a maid in 1933. The following year she was assigned to the X-ray department, her duties being to escort patients to and from the X-ray room and to prepare them for photographing. She continued in this work until 1938 when her assignment was changed to the dark room, developing the plates. Up to 1941 or 1942 when made technician, her exposure to X-rays was minimal. The doctor in charge of the department told her that it was difficult to get a technician and asked her if she would 'learn the machines and so I went out and I was fixing the patients up for X-rays and I used to watch the technician, what she did and you catch on after a while and so I went out and learned the X-rays and they put me out on the machines * * *. I had no training whatsoever.' She testified that no instructions or warnings were given to her; that from 1942 she operated a portable machine in the wards and in the X-ray department; that no safety devices were furnished and that the work required her to stand across the table from the patient during the exposure of the film. In addition she took dental X-rays and often held the film in position during the exposure. This occurred as often as sixty times a week for several years. She was given no warning with reference to danger from holding her hand in the X-ray beam. She never had a blood count excepting on the occasion of an operation. On one occasion in 1943 or 1944 a doctor suggested that a monitor film be, and it was, attached to her uniform; the purpose being to ascertain whether the wearer was being exposed to bombardment by the X-rays. Upon developing, the monitor film showed the presence of the rays. In 1945 or 1946 the plaintiff noticed spots on her hands and upon showing them to the chief of the X-ray department, he suggested that she use cold cream, vaseline and something oily on her hands. In August 1946 while X-raying a patient, the latter ripped the plaintiff's finger. Upon reporting this incident, a biopsy was done and after analysis she was sent to a Dr. McNair at Memorial Hospital in New York. Since then she has done no work in the X-ray department. She was referred for treatment to Dr. Lyndon A. Peer who performed a conservative removal of some of the lesions in September 1946 at which time an earlier diagnosis of skin cancer was reaffirmed. In February 1947 a further operation was performed, followed in 1949 by a more radical operation necessitating removal of the whole surface of the hand down to the tendon sheath. The prognosis is dismal. Amputation may have to follow with no guarantee that the cancer will be arrested. Dr. Peer testified that the condition he observed and for which he operated 'would fit into that general picture', i.e. characteristic of X-ray exposure. Dr. Harrison S. Martland diagnosed the condition as 'dermatitis due to undue exposure to X-ray.' There was evidence from Dr. Arthur Mutcheller, a bio-physicist and radio-physicist, specializing for the past twenty years in the effect of radiation upon living material, that standard practice in the use of a portable X-ray machine calls for a protection screen for the operator and in the case of dental X-rays standard safety regulations required a lead screen and that the technician refrain from holding the film in position and thereby exposing the hands repeatedly to the primary rays.

On behalf of the defendant there was testimony that the equipment and protection methods were standard; that plaintiff had been warned of the dangers and adequately instructed and that she failed to utilize the protective devices furnished for her. Dr. Santora called by the defendant testified that no lead screen was provided for use with the mobile unit when it was used in the wards. Dr. Henley testified that the screens were not mobile, and when asked the question 'So, when the operator was compelled to take photographs, X-ray photographs, outside of the presence of the X-ray room, this operator then would have no screen as a guard, is that correct?' answered, 'No, they do not have anything hardly that I know of.' From this synopsis of the testimony it clearly appears that fact questions were raised for the consideration of the jury unless the law is such as to preclude the submission of the case to the jury.

On behalf of the City it is argued that the plaintiff has failed to sustain the burden of establishing the defendant's negligence, and further argued that she was guilty of contributory negligence. These questions are also questions properly to be decided by a jury.

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