Del Raso v. Elgin, J. & E. Ry. Co.

• Decision Date: 16 June 1967
• Docket Number: Gen. No. 50434
• Citation: 228 N.E.2d 470,84 Ill.App.2d 344
• Parties: , 30 A.L.R.3d 708 Joseph DEL RASO, Horace Sybert, Quinten Benson and Ludwig Dalpiaz, Plaintiffs-Appellees, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 470

228 N.E.2d 470

84 Ill.App.2d 344, 30 A.L.R.3d 708

Joseph DEL RASO, Horace Sybert, Quinten Benson and Ludwig

Dalpiaz, Plaintiffs-Appellees, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, a corporation,

Defendant-Appellant.

Gen. No. 50434.

Appellate Court of Illinois, First District, Fourth Division.

June 16, 1967.

Stevenson, Conaghan, Hackbert, Rooks & Pitts, Chicago, Harlan L. Hackbert, Chicago, of counsel, for appellant.

Nat P. Ozmon, Robert A. Sprecher, Chicago, Meyer Z. Grant, Chicago, of counsel, for appellees.

McCORMICK, Justice.

The four plaintiffs brought an action under the Federal Employers' Liability Act ¹ to recover for the injuries they incurred from lead poisoning they sustained while in the employ of the defendant railroad. The jury brought in separate verdicts for each of the plaintiffs in sums of $14,500 for Del Raso, $12,500 for Dalpiaz, $8,000 for Sybert, and $3,000 for Benson. Judgment was entered on the verdicts. The court denied defendant's motions for judgments notwithstanding the verdict, or, in the alternative, for a new trial. From these judgments and from the order denying the motions after verdict, the defendant brings this appeal.

It is defendant's position that there was not sufficient evidence to show that it knew or should have known of the presence of lead paint on the railway cars on which plaintiffs were working; that the court erred in refusing to instruct the jury on the issue of defendant's lack of knowledge of the existence of a hazard of lead poisoning; and that the court erred in withdrawing the issue of contributory negligence from the jury. Moreover, defendant argues that the verdicts were excessive.

Defendant had employed the four plaintiffs for several years and in October of 1955 had assigned them to stripping a particular series of gondola cars (the 31,000 series) prior to defendant's rebuilding such cars. As shown by the evidence, a gondola car is an all-steel car with a flat door, sides about five feet high, and no roof. To strip such a car defendant's employees remove the rivets and then pull out the floor with a crane. Other parts of the car are removed in a certain order thereafter. The plaintiffs were assigned to working on the initial stage of the stripping process. The critical event in their work, as it concerns this case, is the method by which they removed the rivets, by 'burning' them. The intense flame from an acetylene torch was directed onto a rivet head which had been painted over; when it was 'cherry red' the rivet head would be blasted off. However, as the aera heated the paint thereabouts would smolder and boil, releasing noxious smoke and fumes. These gaseous wastes would be inhaled to some extent by the operator of the torch, since he had to hold the flame of the torch at least 18 to 20 inches away from his face so that he could see what he was doing, and inasmuch as the defendant had not supplied the operator with any protective breathing device until after plaintiffs became ill. Benson, for example, testified;

'That is hot metal and the paint would be smoking all the time you were cutting the rivet out. The smoke would be going in your face and the metal would be flying back at you. You had to do it the best way you could because you had to be close or you couldn't get the rivets out successfully. After you had been doing this work for a couple of hours you would be just as black as coal.'

Dalpiaz stated that 'when you would burn off the paint you would get sort of vapor and fumes and black smoke.' Sybert testified that 'we had to burn the rivets and blow them and got the fumes which would make you cough and feel faint.' The evidence showed that each man removed approximately 250 to 300 rivets by this process each 8-hour working day. The defendant supplied plaintiffs with protective clothing (plain overalls, canvas jacket burner's goggles, leather gloves and leather leggings) but not with inhalators or masks until three months after plaintiffs began complaining that they thought the smoke was making them ill.

Benson testified that he was assigned to the burning job in the first week of October 1955; that in the latter part of that month he began to suffer from nausea, stomach pains, and loss of appetite; that in the following month these disorders increased and he felt pains in his legs. At that time the defendant had the series 30,000 and 31,000 gondola cars on the stripping tracks. Benson told the court that the men on the burning job noted that there was a red paint under the outer coating of black paint, and that the men called this undercoating 'lead paint.' In October and November, according to Benson's testimony, he approached his foreman, one Ernie Koleto (who was deceased at the time of the trial), and complained that the smoke was bothering him and that he thought it was something in the paint; Koleto replied that if Benson didn't want the work he could go home; Benson returned to work, but again complained in November, at which time Koleto told him to return to work, that 'it must be old age creeping up * * *' After these two conversations with Koleto, Benson testified, the defendant company still did not provide Benson with any equipment to protect him from the fumes. Prior to the time he was hospitalized, Benson and several of his fellow employees were laid off for nine days after they had taken an unauthorized break from the burning job; at that time they told the supervisor that the smoke was making them sick and they would like to get off the burning job, but the supervisor refused. Benson further testified that in early February 1956 when he went to his doctor he immediately thereafter stopped working as a burner, and entered the hospital where he was placed under the care of defendant's doctor.

The testimony of Del Raso, Sybert and Dalpiaz was substantially similar. Del Raso went to his physician in December; Sybert went on about December 28 to see a doctor who was associated with defendant's doctor; Dalpiaz went in February to see a doctor who sent him back to the railroad, and after seeing his general foreman, was sent to the hospital.

It was brought out in testimony at the trial that lead is a toxic material and its main effect on the human body is its attack on the central nervous system; it also causes nutritional disbalance which in turn causes loss of weight, lack of appetite, and constipation. The individual may suffer from irritated gums, and his teeth may become loose and require removal. There is a certain amount of lead in the system of the normal, healthy person; lead is found to a certain extent in the food one eats-fruits, vegetables and meats. Abnormal amounts of lead can enter the system if a person ingests, eats, or inhales lead in some form, or if he absorbs lead through the skin. In the case of these plaintiffs, they were exposed to fumes from burning lead paint. The lead entered their bodies through the lungs and was picked up in small quantities by the blood stream and distributed through the body; the hemoglobin in the blood carries the lead. Defendant's doctor described the lead as 'toxic to everything it touches.' Eventually the lead joins with or is compounded with calcium and is deposited in the bones; without outside interference it will stay there and no longer be harmful. Generally, a person suffering from lead poisoning is treated as follows: He is removed from exposure to lead; he is given abundant quantities of liquids and large doses of calcium and vitamin D, along with intravenous injections of sodium calcium versenate to hasten the process by which the lead is either deposited in the bones or is excreted. Sometimes the individual is given sedatives to relieve the pain and vitamin pills to improve the appetite. Lead poisoning is painful because of the irritation it causes to the nervous system. When the individual returns to a relatively normal level of lead content in his blood and urine he can return to normal activities.

From the evidence in the record, each of the plaintiffs was suffering from lead poisoning which revealed itself through the symptoms described above and through X-rays, blood and urine tests. Each plaintiff was treated for such malady and later discharged from the hospital with a medical finding that he could return to work. Del Raso testified to having suffered from stomach cramps, weak appetite, headaches, vomiting and chest pains. He was hospitalized twice, the first time for two weeks and the second time for about one week. He was placed on a special diet, given shots, and fed intravenously. He continued to be under medical care for five months after his second release from the hospital, after which he changed doctors and was hospitalized a third time for about two weeks, and stayed under the care of this doctor for a year and a half. He complained that he still felt some of the effects of the poisoning although he was no longer taking any medication.

Dalpiaz stated that he initially suffered from nausea and stomach pains; that everything tasted as if he were 'eating paint or metal'; that after he complained to his foreman his condition continued to deteriorate; that he couldn't eat or drink, his head severely ached, he had pains in his arms, legs, chest, and mouth, and his teeth all became loose and ached. He was hospitalized in February 1956, and remained away from work for 28 days; he went into the hospital again in 1957 for about a week. He testified that he was still taking some medication for his continuing nervousness and that his teeth were still sensitive to hot and cold foods. He also stated that he had gone to the hospital in 1962 because of a recurrence of the symptoms.

Benson told the court that he began suffering from nausea, stomach pains and loss of appetite in October 1955; that in the following month these disorders increased in severity and he suffered pains in his legs. He stated that in early February 1956 he...