Picchetti v. Pittsburgh Plate Glass Co.

• Decision Date: 18 December 1957
• Citation: Picchetti v. Pittsburgh Plate Glass Co., 153 N.E.2d 209, 105 Ohio App. 514 (Ohio App. 1957)
• Parties: , 6 O.O.2d 244 PICCHETTI, Appellant, v. PITTSBURGH PLATE GLASS CO., Columbia-Southern Chemical Corp., Appellee.
• Court: Ohio Court of Appeals

Page 514

105 Ohio App. 514

153 N.E.2d 209, 6 O.O.2d 244

PICCHETTI, Appellant, v.PITTSBURGH PLATE GLASS CO., Columbia-Southern Chemical Corp., Appellee.

Court of Appeals of Ohio, Tuscarawas County.

Dec. 18, 1957.

Syllabus by the Court

1.The breathing of a poisonous gas by a miner may constitute an accidental injury within the purview of the Workmen's Compensation Act.

2.In an action by a widow to participate in the State Insurance Fund by reason of the death of her husband while working in a coal mine, the husband's death certificate is admissible in evidence, in its entirety, no matter whose exhibit it is.

3.In such case, it is prejudicial error to refuse plaintiff's specially requested charge to the jury that 'an injury [compensable under the Workmen's Compensation Act] may arise through an external means, such as working in fumes and dust and being subjected to an event wherein the air that was breathed was deprived of its ordinary oxygen content and filled with deleterious gases'; and the failure to give such specially requested charge is not cured by the giving of a general charge which does not define the words 'sudden' and 'unusual' as they modify the words 'mishap' and 'event,' does not instruct the jury on the law of poisonous gases as pertaining to an accidental injury, and does not state that the 'conditions' under which decedent worked on the day of his death could be taken into account in determining whether an accidental injury had taken place.

4.The action of one of the counsel in such case, in objecting in open court in the presence of the jury and so the jury could hear him and thereby making known to the jury by whom the special request before argument was being asked, constitutes prejudicial error, even though the request was given at the instigation of the losing party.

John F. Locke, Canton, for appellant.

Thomas J. Duffy, Columbus, for appellee.

PUTNAM, Judge.

Plaintiff's action below was to participate in the State Insurance Fund by reason of the death of her husband while he was working at his job as a 'shooter' in a mine of the defendant, a self-insurer.The jury returned a verdict for the defendant and this appeal on questions of law results, with the following assignments of error.

1.The finding of the court and jury is contrary to the manifest weight of the evidence and is contrary to law.

2.The findings of the jury were improperly influenced by misconduct of the defense counsel.

3.The court erred in permitting to go to the jury 'Exhibit A' when the same was not properly 'masked' according to stipulation.

4.There was no probative evidence of arteriosclerosis or pre-existing heart condition and all evidence relative thereto should have been stricken and all arguments relative thereto were improper.

5.The court erred in failing to give special request No. 4 submitted in writing before argument.

Briefly, the facts as shown by the record are that the plaintiff's decedent worked the night shift as a shooter on a crew working a coal face from 42 to 46 inches high; that the crew consisted of at least a driller, a cutter, a shooter and loader; that the mining operation was to drill holes in the face for the cardox shells, undercut and perhaps overcut the coal, shoot the coal down and load it into cars and haul it away; and that the drilling, cutting and shooting produced fine coal dust known as 'bug dust' which filled the air.Until a decade or so ago coal was shot down with gun powder, but nowadays, in modern mines, it is shot down with cardox or similar shells containing carbon dioxide under high pressure, the sudden release of which produces an expansive force which pushes the coal down without the shattering effects of gun powder.This is not an explosion in the sense that it is a result of a chemical reaction, but it does result in the sudden release of a large amount of carbon dioxide gas.Carbon dioxide exists in normal air in a low concentration and is not poison, but when its concentration becomes heavy the air does become poisonous and will not sustain life, because the carbon dioxide supplants the oxygen.It is heavier than air and seeks its lower level.This would be especially true in a low-ceiling room.In the instant case the ceiling was so low the decedent was forced to crawl therein to insert his shot shells which were about the size of a large baseball bat.It is obvious that an extra concentration of carbon dioxide from excessive shooting would poison the air in the particular room.On the night in question the crew on this shift in this particular room was trying to make a record.They produced 169 cars, whereas the normal production was only 100-125 cars.Consequently, it can be inferred that extra strain was on the crew and also that a concentration of carbon dioxide and 'bug dust' was heavier in this room during this shift.

Near the end of the shift, plaintiff's decedent was found dead in the entry outside the room where he was required to be to touch off a shot and where he was about to set off another shot or had just done so.

The death certificate showed that he died of a 'coronary occlusion' and that the antecedent cause of death was 'arterio sclerotic cardio vascular disease with detached retina recently.'However, there is other medical testimony in the record that decedent's lungs were distended and that the cardiac failure was due to overtaxing the heart in an effort to get more oxygen into the lungs from a poisonous atmosphere.

There were three vital issues in this case.First, did the decedent die from an injury?Second, was the injury an accidental one?Third, was the injury one arising out of and within the scope of his employment?

Under the first assignment of error we find that all the issues were jury questions, and we cannot say that the verdict was against the manifest weight of the evidence or contrary to law.

As to assignment of error No. 3 concerning the admission in evidence of the death certificate, this court has held that the same was admissible.SeeRath v. Industrial Commission, 99 Ohio App. 261, 129 N.E.2d 525.While the appellant in this case claims that there was an agreement at the rehearing that only the first part of this death certificate should be admitted and the rest masked, the actual proceedings at the trial were so indefinite, according to the record, that we cannot say exactly what did transpire.Nevertheless we adhere to our decision in the Rath case and hold that the death certificate in its entirety was admissible no matter whose exhibit it was.This assignment of error is overruled.

Assignment of error No. 4 is not well taken by reason of the above holding as to assignment of error No. 3.

However, assignments of error Nos. 2 and 5 need further discussion.Assignment of error No. 2 has to do with misconduct of counsel for the defendant.The first complaint is that counsel, by his action in objecting in open court in the presence of the jury and so the jury could hear him, made known to the jury by whom the special requests before argument were being asked.In has been held to be prejudicial error for a court to indicate at whose request a special charge before argument was given, and we can see no reason why the same degree of error should not be predicated when counsel does the same thing, even though the requests were given at the instigation of the defeated party.

The second contention under this assignment of error concerns statements made by defense counsel in his argument to the jury.These are two in number and have to do with expressions of opinion by counsel on the merits of the case.The first must be overruled because it is disputed and the remarks were not taken down by the court reporter.The second instance is reported on page 19 of the transcript:

'Mr. Duffy in continuing his argument stated: 'I have practiced many years like John, and I have never yet heard such a neasty case as this in my twenty-five years in industrial work.'* * * 'Mr. Locke is going to make a play and make you believe that that mine there is so full of gas it will kill anybody including...