Appeal from the District Court of the United States for the Western District of New York.
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff Galeota, an employee of the defendant, United States Gypsum Company, brought this action to recover damages for injuries he claims to have suffered because the defendant neglected to provide him with a safe place to work, or to furnish him with devices that would prevent him from inhaling particles of silica from which he contracted silicosis. He sought to recover for negligence of the defendant in failing to observe its common law obligations and also in failing to observe certain provisions of the Labor Law of the State of New York, Consol. Laws, c. 31.
Section 200 of the Labor Law of the State provides: "general duty to protect health and safety of employees. - All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein. The board shall make rules to carry into effect the provisions of this section."
Section 417 of the Labor Law provides: "Ventilation. - 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."
Rule 557 of State Industrial Bulletin No. 12 reads as follows: "In any industry, trade or occupation or process involving the creation of silica dust, there shall be provided means for removing such dust at the point of origin or preventing same from being disseminated in the air breathed by employees in so far as it is practicable to do so."
The defendant evidently supposes that we are in a position to weigh the evidence and to reverse a judgment founded on a verdict against the weight of credible proof, but such is not the case in the United States Courts. We may only upset a verdict for failure of proof where the verdict is without substantial evidence to support it, as was not, in our opinion, the situation here.
The plaintiff's expert Jerome Cowan testified that: "Silicosis is a disease caused by the inhalation of silica or sand particles and is characterized by an absence of fever and decreased ability to work, and an increased susceptibility to tuberculosis, and certain characteristic X-ray changes." Cowan also testified that "the disease is incurable because of the chemical destruction of the lung tissue."
The plaintiff's proof of the defendant's negligence was limited by the New York Statute of Limitations (Civil Practice Act, Section 49) to a period of three years prior to the bringing of this action on August 18, 1933. In order to prevail, the plaintiff must show (1) that he had a condition of his lungs known as silicosis, and (2) that the condition was caused in whole or in part by negligence of the defendant occurring during the six months when he worked for the defendant in the years 1930, 1931 and 1933.
The plaintiff received a judgment for $8,305.08 in the court below from which the defendant now appeals. We hold that there was testimony from which the jury might lawfully find that the plaintiff contracted silicosis and that the disease was due to the defendant's negligence during the six months mentioned. Accordingly the judgment should be affirmed.
The plaintiff testified that he first became dizzy and had sick spells during his employment and had to lay off work in 1930; that after going back to work he felt sick at night, coughed and had difficulty in breathing, felt a burning in his chest "like needles" and had to stop and rest. He added that his condition thereafter got worse. This his physicians attributed to silica particles which he had inhaled while working as a driller for the defendant. There was evidence that he worked in the defendant's gypsum mine at Oakfield, Genesee County, New York, from November 10, 1930, to February 28, 1931, and in its limestone quarry for about six and one-half weeks in 1931, and five days in 1933.
While working in the gypsum mine he used an electric drill on the soft gypsum and a jackhammer, operated by air pressure on the harder rock. In the gypsum mine there was a layer of limestone rock above the vein of gypsum sometimes known as roof or fire rock. In some places there was between the vein of gypsum and the roof rock a layer containing a mixture of limestone and gypsum called ash rock. The mine was developed by pushing forward entries or rooms to the left and right of the main passage. After extracting the vein of gypsum the roof of each entry is taken down for a width of nine feet so as to give clearance from the floor of seven feet and in this cleared entry to lay tracks and install overhead wiring for an electric motor road to make a haulageway for the removal of the gypsum. The plaintiff testified that he used an electric drill in working on the gypsum and a pneumatic jack-hammer in dislodging roof and ash rock. The mine was so constructed that it could be ventilated by natural air currents and was equipped with a forced draft system whereby outside air was sucked into the mine by a fan located in a fan-house above ground.
The proof indicated that the gypsum rock contained only .3% of free silica, the limestone rock 2.4% free silica and 6.5% silicates, and the ash rock from 2.1 to 3.6% of the free silica and 36% of silicates. There also was testimony that an average of 66% of the free ...