Woodward Iron Co. v. Minyard, 12425.

Decision Date12 November 1948
Docket NumberNo. 12425.,12425.
CourtU.S. Court of Appeals — Fifth Circuit

B. J. Dryer, of Birmingham, Ala., for appellant.

D. G. Ewing, of Birmingham, Ala., and W. E. Brobston, of Bessemer, Ala., for appellee.

Before McCORD, and LEE, Circuit Judges, and MIZE, District Judge.

McCORD, Circuit Judge.

A. F. Minyard sued Woodward Iron Company, a corporation, claiming damages because of an alleged failure to furnish him, while employed by defendant, with a safe place in which to work; it was charged that as a proximate consequence plaintiff developed a dust disease of the lungs known as silicosis. By amendment at the trial, the complaint consisted of only one count, which claimed damages for aggravation or acceleration of the disease during the period from December 10, 1945, to September 13, 1946.

The defendant, in answer offered in defense of the action (1) the general issue; (2) contributory negligence; (3) assumption of risk; (4) statute of limitations of one year; and (5) that plaintiff's injury was an occupational disease for which no recovery could be allowed.

By consent of the parties, the case was tried before the court without a jury.

The evidence discloses that plaintiff, a man approximately fifty-three years of age, began working for the defendant in the year 1923, and had served defendant continuously until he was forced to leave because of poor health on September 13, 1946. Defendant has been engaged in the operation of ore mines and related activities for more than twenty-six years. While in the service of defendant, plaintiff worked at practically all types of mining jobs. Throughout the years of his employment, in the discharge of his various mining duties, plaintiff was forced to breathe much dust. In the year 1943, he commenced to suffer from dyspnea as he went about his work. At first he ignored this symptom, and held to his work at the mine. However, as time passed his suffering increased and he developed a cough which caused him to expel from his lungs red ore dust, and later much purulent material. The dyspnea and cough became progressively worse, and finally so severe that he was forced to report to defendant's physician for examination and treatment. Upon examination, plaintiff was referred by defendant's doctor to two other doctors, specialists in radiology, to have his chest X-rayed. Their examination disclosed that plaintiff then had silicosis, nodular type, a dust disease of the lungs. Plaintiff was afterwards advised by defendant's doctor to remain in the open air for a period of approximately six weeks, and that after that period he might be able to re-enter the mines and work with safety to his health. Defendant thereupon removed plaintiff from the mines and placed him on light work around the furnaces above ground. After three months of this type work, during which time his suffering had somewhat abated and his health had improved, plaintiff was notified by defendant that he might remain in his new place, but that his salary would be reduced accordingly. When informed of this, plaintiff threatened to leave the service of defendant, but was told that his services were needed in another mine. The evidence further shows that plaintiff thereafter remained in the employ of defendant working in its Pyne Mine, as he was told to do, and that he there necessarily exposed himself to a dust hazard equally as bad, if not worse, than the one he had previously been forced to leave. His new mining duties in the Pyne Mine involved mining for red iron ore, containing a large percentage of silica. Because of blasting and drilling activities in the mine, large amounts of silica dust were precipitated into the atmosphere where plaintiff and other miners worked. As a result, during the last ten months of his employment with defendant in the Pyne Mine, plaintiff's dyspnea increased, his cough became much worse, and his health failed. His condition interfered to a marked degree with his rest at night. He lost his appetite, and frequently became nauseated at work during the day. His weight decreased from one hundred and thirty-five pounds to one hundred and twenty-two pounds. His cough and dyspnea eventually became so incapacitating that ...

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14 cases
  • Cline v. Ashland, Inc.
    • United States
    • Alabama Supreme Court
    • January 5, 2007
    ...v. Commercial Union Ins. Co., 340 So.2d 764 (Ala.1976); and Minyard v. Woodward Iron Co., 81 F.Supp. 414, (N.D.Ala.1948), aff'd 170 F.2d 508 (5th Cir.1948). Howell simply commented in connection with its review of a lower court's order abating a nuisance caused by the overflow of sewage but......
  • Griffin v. Unocal Corp.
    • United States
    • Alabama Supreme Court
    • January 25, 2008
    ...v. Commercial Union Ins. Co., 340 So.2d 764 (Ala.1976); and Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.1948), aff'd 170 F.2d 508 (5th Cir.1948). Howell simply commented in connection with its review of a lower court's order abating a nuisance caused by the overflow of sewage but ......
  • 94-0585 La.App. 4 Cir. 5/16/95, Young v. Logue
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 16, 1995
    ...(award of $240,000); Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44, 46 (5th Cir.1981) (award of $150,000); Woodward Iron Co. v. Minyard, 170 F.2d 508, 510 (5th Cir.1948) (award of $10,000); see also Cole v. Celotex Corp., 599 So.2d 1058, 1061 (La.1992) (award of $300,000 in asbestosis case......
  • Jerkins v. Lincoln Elec. Co.
    • United States
    • Alabama Supreme Court
    • March 2, 2012
    ...was exposed to the dangerous conditions which caused the injury. Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.), aff'd, 170 F.2d 508 (5th Cir.1948). This was, and is, the rule in all cases concerning continuous torts in Alabama.”368 So.2d at 521 (emphasis added). It is as a consequ......
  • Request a trial to view additional results

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