Pennsylvania Pulverizing Co. v. Butler, 4861.

• Decision Date: 29 September 1932
• Docket Number: No. 4861.,4861.
• Citation: 61 F.2d 311
• Parties: PENNSYLVANIA PULVERIZING CO. v. BUTLER.
• Court: U.S. Court of Appeals — Third Circuit

61 F.2d 311 (1932)

PENNSYLVANIA PULVERIZING CO. v. BUTLER.

No. 4861.

Circuit Court of Appeals, Third Circuit.

September 29, 1932.

Kellogg & Chance, of Jersey City, N. J. (Merritt Lane and Arthur T. Vanderbilt, both of Newark, N. J., and Theodore C. Waters, of Baltimore, Md., of counsel), for appellant Pennsylvania Pulverizing Co.

Samuel Greenstone, of Newark, N. J. (John A. Hartpence and Thomas G. Haight, both of Jersey City, N. J., of counsel), for appellee.

George S. Hobart, of Newark, N. J., amicus curiæ.

Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.

WOOLLEY, Circuit Judge.

Pennsylvania Pulverizing Company is engaged in the business of grading and pulverizing sand for commercial purposes. The process, shortly stated, is to dig from a pit free silica sand such as is found on beaches by the sea. A portion of this raw product is sold for building purposes and for use by railroad locomotives and foundries. For practically all other purposes the sand must be converted into its relatively pure crystalline form; therefore the balance is washed over concentrating tables to eliminate fine particles and impurities. The residue, now pure silica but with quartz particles of different sizes, is, after drying, hoisted in conveyer buckets to the top of an eighty foot tower and dropped on a vibrating screen of a certain mesh. Sand grains which are too large to go through the screen are carried off as tailings; the sand which goes through the first screen but does not go through screens of progressively finer mesh positioned below is sold mainly for the manufacture of glass. That which is not so disposed of is put through airtight revolving pebble mills and ground to a powder which, after sale, is used for the abrading element in many commercial products, among them tooth paste. Although much of the sand movement is in airtight passages, the operations as a whole are very dusty.

Eldred C. Butler had for nearly two years been an employee of the Pulverizing Company. He claimed that, while in its service, he contracted a disease, or perhaps because of uncertainty of the medical profession the ailment may be called a condition, known as silicosis. However termed, it is serious. It arises from exposure to silica dust and is incurable. The symptoms are shortness of breath, limitation of lung and chest expansion, loss of weight and a dry cough. When silica dust is inhaled the particles under ten microns in diameter (a micron is one-twenty-five thousandth of an inch) enter the tiny lung sacs and stay there, setting up an over-production of fibrosis or scar tissue. These small dust particles do the mischief; the larger or ordinary dust particles are discharged by the respiratory organs.

Stating the duties which in law a master owes his servant and averring that by breach thereof he had, on inhaling uncontrolled silica dust, sustained serious injuries, Butler brought this suit. He specified, very satisfactorily from a pleader's standpoint, four grounds of negligence which we shall state and discuss presently. From a judgment in his favor, the defendant took this appeal.

We must, preliminarily, dissipate the atmosphere which beclouds the real issues of the case in order to bring them sharply into view. The plaintiff, at the argument, laid great stress upon the dusty character of the industry in which the defendant is engaged, indicating that it is highly dangerous in that it involves serious and somewhat insidious hazards to health, and implying, without asserting, that the industry is unlawful. Assuming for present purposes that the industry is a dangerous one, yet, even so, there is no evidence that it is unlawful. Like many industries whose products are pulverized materials, such as cement, lime, gypsum, feldspar, barytes, talcum, snuff, and medicinal and dental bases which affect the health or comfort of their operatives, the product of the industry in which the defendant is engaged is impalpable powder — indeed, its product is dust — the manufacture of which is not per se unlawful and the operations are not per se negligent. Therefore, whether this is an industry which, on public or humane grounds, should be abolished is a matter not to be determined by the judicial department of the government and therefore is not here in issue.

There are many questions raised on this appeal. The main and perhaps controlling one is whether the trial court erred in refusing the defendant's motion for a directed verdict for one or more of the reasons there alleged. The first reason was that there is no proof of any one of the four grounds of negligence on the part of the defendant which the plaintiff alleged in his complaint and on which he built his case.

The first ground of negligence charged, and assailed as not proved, is (a), that the defendant failed "to use reasonable care to provide the plaintiff with a reasonably safe place to work."

The duty of a master in that regard is, as matter of law, so well established that it does not call for discussion. Burns v. Del. & Atl. Tele. Co., 70 N. J. Law, 745, 59 A. 220, 592, 67 L. R. A. 956. This averment, however, is general and may be passed by in view of the particular averment to the same effect and to which all evidence on the point was directed, that (c), the defendant, in making the place safe for the plaintiff to work, failed "to use reasonable care to provide a proper ventilating system in its plants."

The Pulverizing Company had been in the business of pulverizing sand since 1906. In 1929 it built a new plant at Toms River, New Jersey. Before completing construction, its president, who had long been conversant with the industry and its objectionable operative features, took certain measures bearing on a master's duty to protect his servants by the exercise of reasonable care, to which he testified as follows:

"When we were drawing the plans for this plant, * * * at Toms River, both myself and several of our engineers visited a great many dusty plants all over the eastern part of the United States. By that I mean east of the Mississippi River. I went as far as St. Louis to see one. I inspected plants in Cleveland and Rochester, New York, in Keene, New Hampshire, down at Irwin, Tennessee, and Sweet Water, Tennessee, all plants I could find where they were handling dusty material, in order to benefit by all of their experience in securing the very best dust collecting and ventilating systems it was possible to secure.

"Then after we had done that and found out what was used elsewhere, coupled with our own experience in other plants, we submitted the preliminary plans of this plant at Toms River to the Cleveland Blower Company of Cleveland, Ohio, and asked them to design and construct the very best dust collecting and ventilating system that was possible to get for that plant at Toms River. They submitted plans for that dust collecting and ventilating system. We adopted those plans and instructed them to go ahead. Those plans were submitted to the Department of Labor at Trenton, Department of Labor of the State of New Jersey, and were approved by the Department at Trenton, New Jersey, and that ventilating and dust collecting system covered the entire plant, where there was any dust at all. It did not apply to parts of the plant where there was no dust. * * *

"We selected the Northern Blower Company because we found they had done a great deal of the work outfitting other plants in the other dusty trades, not only the silica business but in a great many others, lime and gypsum, feldspar, etc. We found they had a great deal of experience and we believed their system was the best system we could obtain for that purpose. * * *

"We installed that completely; the cost of it was pretty heavy, but we installed it as planned, at the start, before the mill was finished. That was fully installed with the working of the mill."

Professor Drinker, Associate Professor of Hygiene at Harvard University, School of Public Health, testifying with reference to the defendant's ventilating system, said, in answer to a question whether or not it was standard in that type of plants: "There is not any real standard. It is fully in keeping with or if not better than the standards in other plants that I saw or in grinding plants in general."

M. E. Eiben, President of the Northern Blower Company, Cleveland, Ohio, which designed and installed the defendant's system, testified that he had installed dust collecting systems all over this country and in foreign countries; indeed, he had made dust collecting his life's work and had done nothing else. He further testified that the dust collecting machine in use at Toms River is of the type approved by the State of New York and is accompanied by certain guarantees as to clean discharge of air. When asked whether or not the equipment which his concern had installed compares in efficiency with dust arresting and dust collecting devices in other silica plants, he answered that it does. To the question: "And is it abreast of the art?" He replied: "It is up to the minute."

Ellwood Driver, Inspector of the New Jersey Labor Department, testified that in December 1930 he visited the plant twice and found it "in excellent condition" and on examining the ventilating apparatus he found it "fine. * * * Good, very good."

Doctor Andrew F. McBride, former Commissioner of Labor of the State of New Jersey, visited the plant in May 1931. Though after the event, his testimony was admitted on a promise by counsel to connect it up. It was to the effect that, as to the condition of the plant with respect to safety appliances and precautions taken for health of the workers, he "found it to be in very good condition."

John Roach, Deputy Commissioner of Labor of the State of New Jersey, examined the plant in December 1930 and January 1931. In reply to a question with reference to safety appliances, both ventilators and respirators, he said: "I found it...