Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.
"Not to be published in State Reports."
Action by Robert Wurst against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
SUTTON, Commissioner.
This is an action to recover damages on account of silicosis contracted by plaintiff from the inhalation of silica dust while employed as a sand blast operator at defendant's plant in the city of St. Louis.
The trial, with a jury, which was had in October, 1934, resulted in a verdict in favor of plaintiff for $3,000, and judgment was given accordingly. Defendant appeals.
Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence.
Plaintiff's case is bottomed on the failure of the defendant to post in a conspicuous place in the room where plaintiff worked a notice of the known dangers to his health arising from the work in which he was engaged and simple instructions as to any known means of avoiding the injurious consequences thereof, and the failure of defendant to furnish plaintiff with an adequate and approved respirator, as required by the statute.
Plaintiff entered defendant's employ as a sand blast operator in April, 1929, and continued at that work until some time in October, 1929. Defendant admitted that during that time he worked 131 days.
Harry Fred Swarting, a witness for defendant described the sand blast room where plaintiff worked and the equipment he used and the manner of its operation, as follows: "The floor plan of the sand blast room was approximately 8 by 10 feet, and the room was 7 feet 3 inches high. There were double doors on opposite sides, one set on the east side and one on the west side of this room. The flooring was constructed of beams upon which is laid a perforated plate. The entire floor was perforated. There was a tank outside the room from which the sand that did the blasting was taken. The sand entered this tank through the top from a hopper, and in this tank the sand is mixed with the compressed air and then applied to the castings through a hose. The hose went inside the room through the side wall. At the end of the hose was a nozzle. The opening at the end of the nozzle out of which the sand came in the sand blasting process was approximately one-half inch in diameter. The size of the stream of sand where it struck the casting would be six to ten inches in diameter if the nozzle was held close to the casting and would be larger if the nozzle was held farther away from the casting. There were approximately sixty pounds of air pressure in the tank. The walls of the sand blast room were composed of sheet steel. The north and south walls of the room were double. There was an air space between the double walls of about six inches. The double wall was so constructed that air could be pumped into the air space between the double walls immediately above the floor of the sand blast room. The openings started immediately at the floor and extended upward possibly eight inches, and were the full length of the room. The entire top of this room is covered with an arrangement of baffles set at various angles with the horizontal to permit free access of air into the room. There was a fan connected with piping to the hollow space between the double walls on the north and south sides of the room. The air space extended on up through the walls to the top of the sand blast room. The air entered the room through the baffled ceiling. The fan connected with the two side walls of this room drew the air out of the room. Through this arrangement the air in the room was changed approximately ten times per minute. There was a sixty-pound pressure sand blast throwing the sand onto the castings. The sand blast is the only treatment the castings get. That takes off whatever sand roughness there is on the castings but not the metal. When the sand hits the castings it rebounds, and is bound to go all over the room. I believe a man in the sand blast room needs a respirator."
Plaintiff testified as follows:
"Before I went to the American Car and Foundry Company I had something over two months' experience as a sand blaster at the Tower Grove Foundry, and later at the Corondelet Foundry about the same length of time. At both places I had a cloth mask with a rubber respirator and a sponge saturated with water. The mask was worn over the head and the sponge was from the eyes down around the mouth. I wore the mask while at work in both places. I had to wet the sponge about every twenty or thirty minutes. I had the same sort of equipment as I had down at the American Car and Foundry Company as far as the blasting work was concerned. The dust at the other places was not so bad. I was furnished with a respirator. I had to wash out the respirator about every twenty minutes.
"At the American Car and Foundry Company the sand blast room was about 10 by 10 feet and 7 feet high and there was no air suction in it. I had a cloth hood, but they never furnished me a respirator in there during the time I was there. There was from 65 to 90 pounds pressure on the sand which was white sugar sand of very small grain. I would hold the nozzle about eighteen inches from the castings. By the time the sand would
hit the castings it would cover about an eight-inch circle. I had a physical examination before I went to work there and passed okay. I would be in the sand blast room on an average of 25 to 30 minutes at a time. When I would turn the sand blast on, you couldn't tell there was any air in there when it was in full force; the room was so full of dust it just looked like a foggy morning. It would be so thick you could see nothing in there and would have to work by the flame of the sand where it hit the casting. I had to bend over to see what I was doing and my face would come within about two feet of the article I was working on. When you stopped the apparatus there was quite a bit of dust in there yet. It gradually goes in the tank below. The dust that was in there would float up. It is not a fact that all the air in there was taken out at the sides in the place so that there was no dust in there. I never did see any apparatus that took the dust away. The fans which were located in the building were about fifty feet away from the blasting apparatus and there were two turns or elbows in the pipes connected with the fans. It would take about five minutes to load up the truck, and I would go in the morning in the sand blast room at about 7:10 and be in there 25 or 30 minutes at a time. There was no protection to my nose at any time while I was in there.
"There never were any signs around there of any character warning of the breathing of the dust.
"I left the place because I was getting sick, had pain in my chest, loss of appetite, loss of sleep and rest, and my throat bothered me all the time, and I had pains in my back and shoulders. When I went to work for the American Car and Foundry Company I weighed between 150 and 160 pounds. I now weigh 139 pounds.
"There was no system or apparatus where I worked that took the dust away and kept the dust from coming in contact with me. The respirators which I used at the other places kept me from breathing the dust. There were no respirators furnished by the American Car and Foundry Company while I was there.
"My condition is worse now. I cough more at night whenever I lie down and then when I get up in the morning if I start to do any kind of work at any time and I get hot I can hardly do anything for coughing. I have tried to do hard work since I left the place but have not been able to do it for coughing, and then my breath is so short I have to sit down. I never had any trouble of that kind before I went to work at that plant, nor any sickness of any kind. I catch cold very easily now.
"I was thoroughly familiar with the construction of the sand blast room at the American Car and Foundry Company. I never did see any openings in the side of the walls in that room near the floor. When the sand blast was running, I could not feel any current of air in there that came down from the top of the steel room. I couldn't feel any draft there at all. When I would go in there before I would start the sand blast I would put on the hood of heavy canvass over my head. It had in front of it a very fine wire mesh that I could see through, but it stopped the big particles of sand from coming through. I wore that all the time I was working at that place. When I finished with one lot of castings, I would open the doors and roll the truck out and would be out unloading and reloading ten minutes at a time. When I was in the sand blast room it would be from 20 to 30 minutes at a time.
"I have had that hacking cough for the last year. I was coughing when I left the American Car and Foundry Company. I commenced it the worst around August. I coughed up stringy dark thick streaks of blood. Whenever I coughed I raised this dark stringy sputum, and that continued from August to the 15th of October, and is still continuing. I am still coughing up that same kind of sputum."
It was admitted by defendant that the sand used by plaintiff in the sand blasting operations was practically pure silica.
During the time plaintiff worked for defendant, and for a long time prior thereto, positive air pressure respirators were on the market and in general use—sixteen or seventeen different types—that prevented the inhalation of dust. The purpose of the hood used by plaintiff in his work was to protect his eyes and face from flying particles of sand. It had no efficiency with regard to...
