L. & N.R. Co. v. Gilliland
| Decision Date | 07 June 1927 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & Nashville Railroad Company v. Gilliland. |
1. Master and Servant. — In employee's action for injuries, alleged to have been received as result of inhaling fumes from certain disinfectants, evidence that employee was required to use formalin in disinfecting railroad coaches held sufficient for jury.
2. Master and Servant. — In action by employee for injuries, alleged to have been received as result of inhaling fumes from certain disinfectants, evidence relative to injury to eyes resulting from use of formalin in disinfecting railroad coaches held for jury.
3. Master and Servant. — If fumigants used by employee in fumigating railroad coaches actually caused injury to eyes as claimed by employee, court could not say, as matter of law, that such fumigants were noninjurious.
4. Master and Servant. — Illiterate employee, knowing nothing of chemical gases and result and effect of fumigants, held entitled to rely on statement of foreman that fumigant which he was required to use in fumigating railroad coaches was not poisonous, and his continuance to work after assurance to such effect did not constitute contributory negligence.
5. Master and Servant. — Where servant conscious of discomfort, but unaware of danger in reference to use of chemical gases in place of work, is assured that they are harmless, this is a continuing assurance of existing fact and not promise to remedy defect.
Appeal from Hopkins Circuit Court.
WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and C.J. WADDILL for appellant.
FOX & GORDON for appellee.
Appellee did various kinds of work for appellant during a period from November, 1922, until the last of February, 1925. A part of this time he was engaged as a coach cleaner; his duty consisting of cleaning the lamps and headlights at the top of two passenger coaches. He also swept and dusted. He performed this duty regularly from the time he entered appellee's service until March, 1923, and irregularly thereafter, though for about three months prior to February, 1925, one-half his time was occupied by this kind of labor, the coaches being brought over from Morganfield in the morning and laying over until 12 o'clock.
Appellee testified that formalin is carried in the stock of supplies at Earlington in labeled jugs, and used in the fumigation of these coaches; that he has frequently seen a negro porter named Dad Gardner, under instructions from appellant's foreman, pour formalin in a bucket of warm water, and mop the floor and baseboard of the toilet and the heating pipes on each side of the coach; that the gas and fumes from the formalin would rise and burn his eyes, nose, and throat, and he could feel it in his lungs; this was unpleasant, but he knew nothing of chemicals and did not know that it was poisonous or that it would poison or injure his system in any way. He reported this fact to his superior officer, J.T. Malone, on two different occasions; at one time in the presence of another witness. On both occasions the foreman told him that the preparation was not poisonous and to continue at work.
Henry Scholtz, who at times mopped the coaches, stated that both formaldehyde and creosolum were used at Earlington; that the man who did the mopping mixed the preparation; that he never made his too strong, but that the old negro Gardner got it too strong; he would pick up the five gallon can and pour maybe a quart in it, and that he (witness) told him that he was getting it too strong, that he did not think Gilliland ever used it or fumigated any; that he was attending to the lamps.
Roy Stultz testified that he was a car inspector and frequently in the cars where Gilliland was at work, that formaldehyde was used for fumigating; and that on one occasion while unstopping a drain pipe the foreman cautioned him not to get any formaldehyde on his hands if they had sores upon them.
Verb Arnold, a car repairer and coach cleaner, states that he cleaned these coaches, quitting in 1924; that the negro Gardner used formaldehyde in the coaches, and it burned your eyes, nose, and throat, but he worked for the most part in the summer when the windows were up. He states that Mr. Malone, the foreman, on one occasion sprinkled formaldehyde in the supply room, and that it burned his eyes, nose, and throat. Appellant further claims that during the last few months of his service the windows were closed while he was at work; that about the 25th of February he was suffering from his eyes, nose, and throat, and had kernels in the lymphatic glands; that he informed the foreman, who advised him to see Dr. Bailey, a specialist, at Madisonville. Dr. Bailey was not in and Dr. Strother prescribed a purgative for him; he resumed outdoor work for a day or two and went back to see Dr. Bailey; at that time he was almost blind and suffering severely. Dr. Bailey corroborates this, and says that his condition was caused by some toxic substance in his system; he put him in hot packs, i.e., wrapped him in blankets wrung out of hot water and gave him purgatives to eliminate the poisons; this was continued at the hospital for a week or ten days and later at his home; he found no trouble with the patient's throat or tonsils; his eye trouble is what is called acute retrobulbar neuritis; that neuritis is an inflammation, not an infection of the nerve, and is followed by atrophy; it may be occasioned by any poison in the system, by infection from scarlet fever, diphtheria, infection of the mucous membranes of the tonsils, teeth, nasal accessories, and the use of alcohol and lead or various other chemicals. However, a Wassermann test was applied and demonstrated that appellee did not have syphilis and he could discover nothing wrong with his sinuses, teeth, tonsils, or urine. In his opinion his condition was not caused by local application to the external eye, "but by something carried into the system either through ingestion, swallowed into the stomach, or breathed into the respiratory tract."
Dr. A.F. Clements, an eye, ear, nose, and throat specialist, examined appellee on December 7, 1925, and October 6, 1926. It was his opinion that appellee had optic atrophy; that optic atrophy usually follows some poison or toxic substance, and that appellee's condition was due to some poison. In answer to hypothetical questions he says that in his opinion the condition of appellee's eyes could have been caused either by direct action of the formalin gases or indirectly by breathing the poison fumes.
Dr. Beasley, an eye and nose specialist of Hopkinsville, corroborates Dr. Clements. On cross-examination he was asked:
Formalin is a 40 per cent. acqueous solution of formaldehyde, and is a derivative of wood or methyl alcohol. When subjected to certain chemical reactions it gives off formaldehyde gas, which is extremely irritating to the eyes, nose, and throat, and admittedly highly poisonous.
Appellant claims that the coaches mentioned remained over night at Morganfield. They were there fumigated once in ten days with a preparation of formalin, the formula being two and one-half pints of formalin, six pounds of lime, three-fourths of a pint of alum water, the mixture being put in a three-gallon container without water. The doors and windows of the coach to be disinfected were closed and the container left therein. The fumes produced by the chemical action of the mixture permeated the atmosphere of the coach and produced the desired result. In the morning after the fumigation the coaches were used in regular passenger travel to Earlington and left there from 8 until 11 o'clock. They were there mopped and cleaned, but in doing this no formalin or formaldehyde was ever used. Instead it used creosolum. This is a brown liquid put up in three-gallon jars which upon being dissolved in water turns to a milky color and gives off certain fumes and was used as described by appellee and his witnesses. This testimony was given by a number of employees. It is also shown by chemists that creosolum is a coal tar derivative, is nonpoisonous, and is helpful rather than injurious to health. Its witnesses show that appellant has been using this preparation for 20 years without any injurious result and has had no complaint theretofore prior...
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