Stornelli v. United States Gypsum Co., 165.
| Decision Date | 01 June 1943 |
| Docket Number | No. 165.,165. |
| Citation | 134 F.2d 461 |
| Parties | STORNELLI v. UNITED STATES GYPSUM CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Casper V. Baltensperger and Goodwin, Nixon, Hargrave, Middleton & Devans, all of Rochester, N. Y., and Scott, MacLeish & Falk, of Chicago, Ill. (Wendell J. Brown, of Chicago, Ill., of counsel), for appellant.
William L. Clay, of Rochester, N. Y., for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
Writ of Certiorari Denied June 1, 1943. See 63 S.Ct. 1317, 87 L.Ed. ___.
The defendant appeals from a judgment in an action to recover for injuries suffered by the plaintiff while in its employ. Its liability, if any, must be confined to the violation of § 417 of the New York Labor Law because that was all that the judge left to the jury. The plaintiff had worked in the defendant's gypsum mine from some time in 1914 until April, 1930, as a "loader" or "driller." His own testimony, confirmed by that of two fellow workmen, was that during this time, the drifts and headings where he worked were constantly filled with clouds of dust caused by the pulverization of rock by drills and other machinery; and that, being forced to breathe such atmospheres, he suffered a disease of the lungs, known as pneumoconiosis, which was the injury for which he sued. The defendant had set up a large fan at the mouth of the mine, designed to blow the dust out of the galleries and headings, but according to the testimony of the plaintiff's witnesses, it did not do so for various reasons not necessary to detail. Although the defendant denied that dust in any serious amount was left in the mine, upon that issue the verdict is conclusive in the plaintiff's favor. The action was brought in April, 1935, five years after the plaintiff left the defendant's employment. Sub. 6 of § 49 of the New York Practice Act makes three years the period of limitation for "an action to recover damages for * * * a personal injury, resulting from negligence"; and sub. 2 of § 48 makes six years the period for "an action to recover upon a liability created by statute, except a penalty or forfeiture." The first question is which of these periods is the right one; the second question, and the only other one of any consequence, is whether the plaintiff proved that he was injured by breathing dust during the only year for which at most he could recover — from April 1929 to April 1930.
Section 417 of the New York Labor Law, which is applicable to mines, provides that "an air current sufficient to remove smoke and noxious gases and to insure the safety of every employee shall be conducted along every passageway and working place." Air, filled with the dust of powdered rock, is within this language; to deny to it the name of "noxious gas" would disregard the plain purpose of the Act; and indeed, even if we were disposed to be literal, air is a gas, and air filled with finely comminuted particles of rock is a noxious gas, just as air filled with finely comminuted particles of partly burned wood is smoke. That being assumed, we may take Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450, as an authoritative exposition of the applicable period of limitation. That decision turned upon the meaning of sub. 2 and sub. 3 of § 299 of the New York Labor Law; of which the first required "all machinery creating dust or impurities" to "be equipped with proper hoods and pipes connected to an exhaust fan of sufficient * * * power to remove such dust"; and the second required that "suction devices shall be provided which shall remove * * * impurities * * * by means of proper hoods connected to conduits and exhaust fans." The court held that these enactments were for the benefit of those employees who might be exposed to the danger of breathing dust, and that they "created" a "liability" within sub. 2 of § 48 of the Civil Practice Act, as distinguished from giving support to a finding that the employer had failed to exercise the care that he should have: i. e., been guilty of "negligence."
We see no difference between "hoods," "pipes" and a "fan" "of sufficient power" (or "hoods," "conduits" and "exhaust fans," which "shall remove"), and "an air current sufficient to remove smoke and noxious gases," except that in the first the means of producing the "air current" is prescribed, and in the second it is left to the employer. In each case the critical consideration is that the statute has prescribed precautions for the benefit of the employees, which the employer fails to observe at his peril. However careful he may have been,...
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Marsh v. Butler County Alabama, 99-12813
...in the specific circumstances, is doing violates established federal law.9 Page 1032 See generally, Stornelli v. United States Gypsum Co., 134 F.2d 461, 462 (2nd Circuit 1943) (Learned Hand, J.) (where the court was comparing jury's responsibility in applying specific duty imposed by statut......
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Minyard v. Woodward Iron Co., 5932.
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...Court of Appeals for the district court of the United States for the western district of New York in the case of Stornelli v. United States Gypsum Co., 2 Cir., 134 F.2d 461, 462, which was tried under the laws of the state of New York, commenting upon the case of Schmidt v. Merchants Despat......