Reidy v. Crompton & Knowles Loom Works

• Decision Date: 06 April 1945
• Citation: 60 N.E.2d 589,318 Mass. 135
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: REIDY v. CROMPTON & KNOWLES LOOM WORKS.

318 Mass. 135

60 N.E.2d 589

REIDY

v.CROMPTON & KNOWLES LOOM WORKS.

Supreme Judicial Court of Massachusetts, Worcester.

April 6, 1945.

Exceptions from Superior Court, Worcester County; Swift, Judge.

Action of tort for personal injuries by Michael J. Reidy against Crompton & Knowles Loom Works. After plaintiff's death his widow, Nora J. Reidy, who was his administratrix, was admitted as the party plaintiff. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS and SPALDING, JJ.

F. P. McKeon and N. Fusaro, both of Worcester, for plaintiff.

George B. Rowell, of Boston, for defendant.

SPALDING, Justice.

Michael J. Reidy during his lifetime brought this action of tort to recover for personal injuries sustained while in the employ of the defendant corporation, which was not insured under the Workmen's Compensation Act. Following the death of Reidy, his widow, who was his administratrix, was admitted as the party plaintiff to prosecute the action. The case was tried to a jury and a verdict was returned for the plaintiff. The case is here on the defendant's exceptions to a denial of its motion for a directed verdict, to the judge's refusal to grant certain requests for instructions, to portions of the charge, and to numerous rulings relating to the admission and exclusion of evidence.

The evidence viewed in its aspect most favorable to the plaintiff warranted the jury in finding the following facts: The plaintiff's intestate, hereinafter called the deceased, was employed by the defendant from 1918 to July 5, 1933. Down to 1932 he was one of a group of men assigned to work at various jobs in the defendant's foundry. During the greater portion of this period his duties included the transporting of coke, scrap iron, limestone and sand to the stack room in the foundry, and the shoveling of coke and other materials into the furnaces. He was also called upon from time to time to repair and reline the stacks. This necessitated his entering the stacks where he would reline the sections inside which had burnt away and would patch up the cracks with fire clay (which consisted of sand and clay) and ‘silica rock.’

For several years prior to the fall of 1932 he was exposed ‘to an excessive amount of dust and sand and gas fumes caused by a back-draft in the furnace’; ‘the place was filled with gas and dirt most of the time.’ On windy days there was so much dust in the air that one man could not be distinguished from another. When the deceased would return home from work he ‘would be covered with a film of dust’; it ‘would be in the hair * * * eyebrows * * * [and] moustache.’ Some of the materials used where the deceased worked contains silica. One of these materials, namely, foundry sand, contained a ‘very high content of silica.’ Silica ‘cannot be seen with the naked eye or even with the aid of the ordinary microscope but can only be determined by special apparatus.’ The defendant knew that dust containing silica was harmful. Prior to 1928 there were no fans to eliminate the dust and gases in the place where the deceased worked, but during that year fans were installed. These fans were inadequate and out of order most of the time. The deceased complained of this condition to the foreman some time in 1930 and at other times thereafter and was assured that it would be taken care of, but nothing was done about it. This condition existed down to 1932 when the deceased was transferred to the job of operating an elevator in the foundry. The elevator was near the stack room and the deceased carried ‘the stuff’ from the first to the second floor. Masks or respirators for the purpose of eliminating the inhalation of dangerous dust were used by workers in certain parts of the foundry since 1920, but they were not worn by those employed where the deceased worked.

On July 5, 1933,¹ the deceased collapsed while at his work. Shortly thereafter he was sent to a hospital where he remained until his death on December 18, 1937, at sixty-eight years of age. His medical history showed that since the latter part of 1929 he had suffered loss of weight and appetite; and that he slept poorly and had a bad cough. There was expert medical testimony that X-ray films taken after his admission to the hospital disclosed a far advanced case of pulmonary tuberculosis superimposed on a disease of the lungs which was ‘fairly characteristic of silicosis'; that the hospital record indicated that the deceased ‘had marked clubbing of the fingers' which is also characteristic of silicosis; that silicosis is a disease of the lungs resulting from the inhalation of silica dust; that the deceased at the time of his admission to the hospital was suffering from silicosis which was undoubtedly the result of inhalation of dust containing free silica; and that the silicotic changes within the lungs ‘made him a more ready prey to infection of tuberculosis, so that he came down with tuberculosis readily and subsequently * * * died.’

1. Since the defendant was not insured under the Workmen's Compensation Act, the only question raised by the defendant's motion for a directed verdict is whether there was evidence of negligence of the defendant which contributed to cause an injury to the deceased. McGonigle v. O'Neill, 240 Mass. 262, 133 N.E. 918;Sylvain v. Boston & Maine R. R., 280 Mass. 503, 182 N.E. 835;Walsh v. Boston & Maine R. R., 284 Mass. 250, 187 N.E. 554. See now St.1943, c. 529, § 9A. The motion was properly denied. On the facts set forth above the defendant could be found to be negligent in setting the deceased at work in a dangerous place without protection or warning. Roberts v. Frank's, Inc., 314 Mass. 42, 45, 49 N.E.2d 427.Wood v. Canadian Imperial Dry, Inc., 296 Mass. 80, 82, 5 N.E.2d 8;Engel v. Boston Ice Co., 295 Mass. 428, 4 N.E.2d 455;Watkins v. New York, New Haven & Hartford R., 290 Mass. 448, 195 N.E. 888;Cronan v. Armitage, 285 Mass. 520, 190 N.E. 12;Bernabeo v. Kaulback, 226 Mass. 128, 130, 115 N.E. 279;Leary v. Boston & Albany R., 139 Mass. 580, 584, 2 N.E. 115,52 Am.Rep. 733. ‘It is the duty of an employer who puts an employee to work in a place of danger that was known or should have been known by him, to give to the employee such instructions and warnings as are reasonably required by the youth, inexperience or want of capacity of the employee. * * * An employer is not relieved of such duty by the fact that the conditions constituting the danger are obvious, if the employee does not know or appreciate, and reasonably should not know or appreciate, the danger thus created. * * * A danger that could be apprehended only by persons possessing special experience or scientific knowledge is not so obvious as to render unnecessary a warning to an employee who did not have such knowledge or experience. * * * A person engaged in a business that in its ordinary operation involves dangers to the health of employees engaged therein has a duty to inform himself concerning such dangers.’ Cotoia v. Seale, 306 Mass. 101, 103, 27 N.E.2d 706, 708;Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042. Where there is a duty to warn and no warning is given, the defendant may be found to be negligent even though the danger is one that the defendant in the ordinary course of its business cannot avoid. Wood v. Canadian Imperial Dry, Inc., 296 Mass. 80, 83, 5 N.E.2d 8. The foregoing principles are applicable where an employer places and continues an employee at work for a substantial length of time under conditions which, in the absence of appropriate precautions, are calculated to engender a disease of a serious and injurious nature. Zajkowski v. American Steel & Wire Co., 6 Cir., 258 F. 9, 11, 6 A.L.R. 348;Thompson v. United Laboratories Co., 221 Mass. 276, 280, 108 N.E. 1042. Actions for personal injury arising from disease or harm to health contracted in the course of one's employment and without physical impact, where other elements of liability are present, may be maintained at common law. Cotoia v. Seale, 306 Mass. 101, 27 N.E.2d 706; Madden's Case, 222 Mass. 487, 491, 111 N.E. 379, L.R.A.1916D, 1000;Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042; Hurle's Case, 217 Mass. 223, 224, 104 N.E. 336, L.R.A.1916A, 279, Ann.Cas.1915C, 919;Jacque v. Locke Insulator Corporation, 2 Cir., 70 F.2d 680, 683;Cox v. American Agricultural Chemical Co., 24 R.I. 503, 53 A. 871,60 L.R.A. 629;Fox v. Peninsular White Lead & Color Works, 84 Mich. 676, 682, 48 N.W. 203;Wagner v. H. W. Jayne Chemical Co., 147 Pa. 475, 23 A. 772,30 Am.St.Rep. 745;Clerk v. Banner Grain Co., 195 Minn. 44, 51, 261 N.W. 596.

Under this principle liability has been imposed on the employer by reason of the inhalation of injurious fumes or dust by the employee in the course of his employment. Thompson v. United Laboratories Co., 221 Mass. 276, 108 N.E. 1042;Shea v. Glendale Elastic Fabrics Co., 162 Mass. 463, 38 N.E. 1123;Jacque v. Locke Insulator Corporation, 2 Cir., 70 F.2d 680, 683. See Maggelet's Case, 228 Mass. 57, 60, 116 N.E. 972, L.R.A.1918F, 864.

It cannot be said, as the defendant contends, that the plaintiff cannnot recover as matter of law because of contractual assumption of the risk by the deceased. Since the injury complained of occurred prior to the enactment of St.1943, c. 529, § 9A, amending G.L.(Ter...