Minyard v. Woodward Iron Co., 5932.

Decision Date09 April 1948
Docket NumberNo. 5932.,5932.
Citation81 F. Supp. 414
PartiesMINYARD v. WOODWARD IRON CO.
CourtU.S. District Court — Northern District of Alabama

Lipscomb & Brobston, of Bessemer, Ala., and D. G. Ewing, of Birmingham, Ala., for plaintiff.

Dryer & Dryer, of Birmingham, Ala., for defendant.

LYNNE, District Judge.

This cause, coming on to be heard on the 6th day of April, 1948, was tried to the court without a jury by agreement of the parties, heretofore noted in an order of this court entered in this cause on the 19th day of September, 1947. After a full and fair consideration of the evidence adduced by the parties and the oral arguments of counsel, the court now proceeds to make and enter the following findings of fact, conclusions of law and judgment:

Findings of Fact.

1. The plaintiff is a white man, fifty-three years of age as of November, 1947. The defendant is a corporation and has been engaged for more than twenty-six years in the operation of ore mines and sundry other activities.

2. In 1923 plaintiff entered the employment of the defendant and in the intervening years between 1923 and September 13, 1946, he worked at practically all types of mine jobs for defendant in its ore mines. All of these jobs were very dusty, and plaintiff, in the discharge of his duties, was forced to breathe such dust.

3. In 1943 plaintiff commenced to notice progressive dyspnea on exertion. At first he ignored this symptom and continued to work at his job in the mine. During this time he developed an irritating cough which was at first nonproductive except for red ore dust but later it contained much purulent material. The dyspnea and cough became so severe that he reported to defendant's Doctor Denson for treatment. He was examined by Doctor Denson and sent to Doctors Meadows and Kesmodel, expert radiologists, to have his chest X-rayed. The radiograms made by Doctors Meadows and Kesmodel on March 19, 1943, disclosed that plaintiff then had silicosis, nodular type, which fact was reported to Doctor Denson. Doctor Denson informed the plaintiff that he had silicosis, a dust disease of the lungs. Plaintiff was told by Doctor Denson that if he should remain in the open air for a period of approximately six weeks, he might, after the expiration of such period, re-enter the mines and work therein with safety to his health. Defendant thereupon removed plaintiff from the mines and placed him on light manual labor around the furnaces above ground. At the expiration of approximately three months, during which he had noticed greater physical comfort in his new occupation, plaintiff was informed by the defendant that he might remain at this work but at decreased compensation. Thereupon plaintiff informed defendant that it would be necessary for him to sever his long association with it but was told that the defendant needed him in its Pyne mine.

4. From and after November 24, 1945, plaintiff worked in defendant's Pyne mine and was engaged in mining therein and recovering therefrom an ore or mineral commonly known as red iron ore, which ore contained a large quantity or percentage of silica. Plaintiff performed his duties in and about development and loading operations in defendant's Pyne mine in an environment which was extremely dusty. During the last ten months of his employment by defendant, plaintiff's dyspnea increased markedly, his cough became much worse and he noticed a rapid failing of his health. His cough was very productive and almost continuous, especially at night. Because of this constant annoyance at night, he was unable to obtain necessary rest. He lost his appetite and frequently, while at work, vomited during the day. He lost in weight from one hundred and thirty-five pounds to one hundred and twenty-two pounds. His cough and dyspnea became so severe that he finally quit his job on September 13, 1946, even though, for economic reasons, he tried to keep his job as long as possible. Since November, 1946, plaintiff has operated a small sandwich shop in Fort Worth, Texas. In this business, his wife cooks and prepares food and he serves it to the customers. From this business the two of them realize a profit of about twenty-five dollars per week. During the last twelve months of his employment by defendant, plaintiff's average weekly earnings were approximately sixty dollars per week. Except during the period of his employment by defendant, plaintiff has never worked in an occupation in which he was exposed to dust containing silica in harmful concentration.

5. From November 24, 1945, to September 13, 1946, defendant operated its Pyne mine with three shifts each twenty-four hours, six days per week. Blasts were set off in the mines at the end of each shift and the miners of the next shift were in their places of work within approximately forty-five minutes thereafter. The ventilation in the mines was wholly inadequate to remove the dust following upon the explosions within such period of forty-five minutes. The only means for allaying the dust provided by defendant was a hose containing water only, frequently at inadequate pressure. No nozzle was provided for spraying the water on the muck and the miners were required to place their thumbs over the end of the hose in order to obtain a spray. No "wetting agent" was provided by defendant in the water. Canvas tubings carried compressed air to a position not closer than one hundred and fifty feet to the place wherein plaintiff was performing his duties. At frequent intervals this canvas tubing was punctured in numerous places and the damage was not repaired for several days, thus diminishing the effectiveness of the compressed air.

6. Plaintiff was not provided with a respirator nor was he informed that defendant would provide respirators for its miners at their request.

7. Exposure to silica dust of pathogenic quantity and pathogenic size is not normally incident to and to be expected of employment in red iron ore mines except as such exposure is created by the negligence of the employer. Silica dust of such quantity and size was present in defendant's iron ore mines but its presence was not known to plaintiff nor was its nature and character so obvious that plaintiff would naturally and reasonably have known of it or the risk and danger incident thereto.

8. The dust in defendant's Pyne mine at the place where plaintiff worked from November 24, 1945, to September 13, 1946, did contain free silica of pathogenic quantity and pathogenic size. Plaintiff was exposed to this dust, did inhale it; his silicotic condition was aggravated thereby and at least one-third of his present disability, which is sixty per cent permanent, is attributable to his inhalation of silica dust from November 24, 1945, to September 13, 1946.

9. At all times from 1923 to September 13, 1946, and more particularly during the period from November 24, 1945, to September 13, 1946, certain methods and processes for reducing harmful concentrations of dust in its mines were available to the defendant. Such measures, though entailing additional expense, were feasible and reasonable to employ. These methods and processes included the employment of wetting agents, the use of a water curtain, the use of a misting process, an increase in the interval between shifts and provision for more adequate ventilation. In exercising due care for the safety and health of its employees the defendant could have and should have made provision for periodic medical examination of its employees engaged in dusty operations and could have and should have furnished such employees with approved respirators where the dust could not properly have been allayed. Failure of defendant to adopt and use methods and processes designed to eliminate, as far as possible, or to reduce to harmless concentration the dust in the breathing zone of its workers in its mines constituted a breach of the duty it owed plaintiff and pl...

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    ...Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Garren v. Commercial Union Ins. Co., 340 So.2d 764 (Ala.1976); and Minyard v. Woodward Iron Co., 81 F.Supp. 414, (N.D.Ala.1948), aff'd 170 F.2d 508 (5th Howell simply commented in connection with its review of a lower court's order abating a nu......
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    ...Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Garren v. Commercial Union Ins. Co., 340 So.2d 764 (Ala.1976); and Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.1948), aff'd 170 F.2d 508 (5th Howell simply commented in connection with its review of a lower court's order abating a nui......
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    ...are limited to those resulting from injuries occurring within the limitations period. Thus, in the case of Minyard v. Woodward Iron Co., 81 F.Supp. 414, 417–18 (N.D.Ala.1948), the federal district court was able to state: “Under pertinent decisions of the Alabama courts, a recovery may be h......
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    ...one year after the last day on which the plaintiff was exposed to the dangerous conditions which caused the injury. Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.), Aff'd, 170 F.2d 508 (5th Cir. 1948). This was, and is, the rule in all cases concerning continuous torts in In the rec......
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