Russo v. Swift & Co.
| Decision Date | 02 June 1939 |
| Docket Number | 30576. |
| Citation | 286 N.W. 291,136 Neb. 406 |
| Parties | RUSSO v. SWIFT & CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Judicial notice is taken of the diseases to which men are subject, and, in a general way, of the causes or sources of such diseases and the nature and effect of injuries, diseases and physical defects, so far as they are matters of common knowledge and universally known, as evidenced by standard dictionaries encyclopedias, and standard, accepted medical authority.
2. An occupational disease is, or must be, one which is a natural incident of a particular occupation, and must attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.
The disease of echinococcosis held not to be an occupational disease incident to the employment of the plaintiff.
3. The duty of an employer to warn an employee of the dangers of his employment is limited to dangers of which the employer knows or ought to know, or which he has reason to believe that the employee does not know and will not discover in time to protect himself. The rare and unusual disease of echinococcosis does not constitute such danger of the employment in which the plaintiff was engaged as to require the employer to anticipate or to know, with a reasonable degree of certainty, of its existence in defendant's plant.
4. An employer is not compelled to foresee and guard against an accident which reasonable and prudent men would not expect to happen, and where an injury to a servant could not reasonably have been anticipated.
5. Allegations of plaintiff's petition examined, held not to state a cause of action under the common law sufficient to charge defendant with negligence, and demurrer thereto was properly sustained.
6. Allegations of plaintiff's petition, seeking to allege a cause of action under the following sections of the statute: Sections 48-401, 48-403, Comp.St.1929, under article 4 entitled " Health and Safety Regulations; " section 54-946, Comp.St.1929, under article 9 entitled " Protection of Health of Domestic Animals; " and section 81-1501, Comp.St.1929, under article 15 entitled " Sanitation of Premises Used for Manufacture or Preparation of Foods," are insufficient to show a violation of said sections, and demurrer thereto was properly sustained.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Joe Russo against Swift & Company to recover for disability resulting from a disease contracted while in the employ of the defendant. From a judgment in favor of the defendant, the plaintiff appeals.
Judgment affirmed.
Paul J. Garrotto and Samuel P. Caniglia, both of Omaha, for appellant.
Rosewater, Mecham, Shackelford & Stoehr and A. L. Knabe, all of Omaha, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and JOHNSEN, JJ.
Plaintiff, a resident of Omaha, Nebraska, entered the employ of the defendant corporation in its Omaha plant in April, 1925. His duties were those of a beef washer. He continued in such employment until the month of December, 1935, when he became totally and permanently disabled as the result of a disease known as " echinococcosis." On October 16, 1936, he filed a petition in the district court for Douglas county, seeking to predicate a cause of action under the common law, charging the defendant corporation with negligence. His second amended petition, in substance, explanatory of the cause of action, follows:
At the time the plaintiff entered the employment of the defendant he was not informed by it, nor did he know, of the danger of infected meats and hides. No information as to protection for his health from the ravages of meat, infected with contagious or infectious disease, was given to the plaintiff or brought to his knowledge by the defendant. Therefore, during the months of May, June and July and during the whole year of 1933, the plaintiff gradually contracted a disease known as " echinococcosis." Said disease germs entered the plaintiff's system through the pores of skin of his hands and through his lungs. The disease germs were negligently and carelessly allowed to remain on meats which the plaintiff was handling in the regular course of his employment, and in the air of the room in which he was working. In this connection plaintiff alleges that such germs spread and developed and grew in this plaintiff's system until December, 1935, when this plaintiff, as a result of the gradual contraction of said disease, became permanently and totally disabled; that this plaintiff contracted said echinococcosis, not as a result of any negligence on his part, but through the sole and proximate negligence on the part of defendant and its agents, in purchasing cattle which they knew, or, with the exercise of reasonable care, should have known, were infected with the disease; in negligently failing to discover that said cattle were so infected, and negligently failing to destroy and otherwise place said infected cattle in a position where the disease could not spread to this plaintiff; in failing to warn the plaintiff that such cattle were infected; in permitting plaintiff to unknowingly handle cattle which the defendant knew, or should have known, were infected with a dangerous and contagious disease; in failing to provide plaintiff with gloves or suitable apparatus which would protect him from the ravages of a dangerous and contagious disease, and in failing to provide ventilators, disinfectants or any other proper method of exterminating said disease.
To this petition the defendant demurred generally. The demurrer was sustained, and from this order plaintiff appeals, contending that such ruling constituted error.
The effect of a general demurrer was expressed by this court in the case of Van Horn v. Lincoln Sales Outlet Co., 127 Neb. 301, 255 N.W. 36, 37, as follows: " A demurrer is an admission of the truth of all facts properly averred in the pleading demurred to; it admits, however, only such facts as are well pleaded and all intendments and inferences that may fairly and reasonably be drawn therefrom."
The issue to be determined is: Does the plaintiff's second amended petition allege facts sufficient to constitute a cause of action at common law, charging the defendant with negligence? Having in mind the effect of a general demurrer, we direct our attention to the second amended petition. Our first inquiry is as to the nature of the disease known as " echinococcosis," which plaintiff alleges caused his total and permanent disability. In this connection plaintiff alleges that he gradually contracted the disease known as echinococcosis; " said disease germs entered this plaintiff's system through the pores and skin of his hands and through his lungs."
" Judicial notice will be taken of scientific facts which are universally known, and which may be found in encyclopedias, dictionaries, or other publications." 15 R.C.L. 1127, sec. 55. The plaintiff has used a scientific term which has a usual and ordinary meaning, capable of definition in standard dictionaries, medical dictionaries, encyclopedias, and accepted medical authority. We are not privileged to take cognizance of scientific matters of uncertainty or dispute, or of insufficient notoriety, even though learnedly discussed in scientific publications. We will, therefore, confine ourselves to the definition of the term " echinococcus" and the understandable, common and accepted conception of the disease.
In the case of McCauley v. Imperial Woolen Co., 261 Pa. 312, 323, 104 A. 617, 621, in speaking of the disease known as " anthrax," the court took judicial notice that it is a matter of general knowledge that such disease is primarily a disease of animals,
In 23 C.J. 146, it is said: " Judicial notice is taken of the diseases to which men are subject, and in a general way of the causes or sources of such diseases, and the nature and effect of injuries, diseases, and physical defects, so far as they are matters of common knowledge."
In the case of Richardson v. Greenberg, 188 A.D. 248, page 252, 176 N.Y.S. 651, page 653, the court said: " It is a matter of common knowledge that the conditions generally prevailing in cases of infectious disease are caused by poisons or toxins exuded by living organisms or bacteria present within the human body; " and in such case Encyclopedia Britannica and other accredited authority were resorted to. See Sobol v. Sobol, 88 Misc. 277, 150 N.Y.S. 248; Janssen v. Mulder, 232 Mich. 183, 205 N.W. 159.
In view of the foregoing holdings, we now turn to the following authorities defining echinococcus.
Webster's New International Dictionary (2d ed.) 1938, defines " echinococcus" as: The same dictionary defines " cysticercus" as: ...
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