Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
This is an appeal from a judgment favorable to the plaintiff in an action predicated upon Secs. 2 and 3 of the Workmen's Occupational Diseases Act of Indiana, Chap. 69, Indiana Acts of 1937, Secs. 40-2202, 2203, 8 Burns' I.S.A., 1940, Repl. The Act permits the recovery of damages by an employe for injury to health by reason of disease contracted or sustained in the course of his employment, proximately caused by the negligence of his employer. Any violation by an employer of any law of the State, intended for the protection of the health of employes, is designated as negligence within the meaning of the Act. It is also provided that assumption of risk of the employment, negligence of fellow servants or contributory negligence of the employe shall not be a defense.
The complaint alleged that plaintiff, while employed by defendant and as a result of the latter's negligence, contracted silicosis which developed into tuberculosis. The case was tried to a jury, and upon its determination of the issues in favor of the plaintiff, the judgment in controversy was rendered. Two propositions are urged for reversal: (1) There was no substantial evidence to support the charge of negligence, and (2) the erroneous admission of evidence.
Plaintiff was employed in defendant's stove and brass foundry, where he was engaged in operating certain machines and equipment and where it was alleged great quantities of dust containing silica was engendered which caused the injury to plaintiff's health. Defendant was charged with both common law and statutory negligence. The negligence alleged may be summarized: (1) Failure to provide a safe place to work; (2) failure to provide a sufficient means of ventilation; (3) failure to provide exhaust fans to carry off dust created by dust-creating machinery; (4) failure to provide respirators; and (5) failure to dampen sand and dust before sweeping, scraping and riddling, and failure to dump molds and riddle sand out of the presence of employes.
Defendant makes the mistake, so we think, so oftentimes made, of arguing the weight which should be given to the evidence. Such argument is properly directed to a jury, of course, but is of little consequence when made to a reviewing court. It is elementary that the question of negligence is one for the jury and that its determination is conclusive if there is any evidence, together with all reasonable inferences to be drawn therefrom, in support of the charge. Our function is limited to ascertaining if there is any such evidence, and in doing so we must consider the record in the light most favorable to the plaintiff.
Under these circumstances, we need only briefly summarize the evidence relied upon by the plaintiff. In doing so, we also think there is no occasion to discuss the evidence as it relates to all of the various acts of negligence charged, for the reason that it is sufficient if any of such acts, either statutory or common law, are sustained by the proof.
Plaintiff, for a period of nearly thirteen years, worked as a molder either in defendant's brass or iron foundry, where sand was used for molds in which numerous casting forms were made. At the commencement of the trial, a stipulation was entered into by the parties which included the following:
"6. The moulding sand used by plaintiff and defendant's other moulders is a natural sand such as is commonly used in foundries for making moulds, and it contains particles of free silica which the defendant knew can be inhaled and result in a condition in the lungs known as silicosis."
The iron foundry room was 402 feet long by 182 feet wide, with ventilation provided by windows. The brass foundry room was 80 feet long by 51 feet wide, with ventilation provided by windows and two monitors. (A ventilator was provided for a furnace operated in this room.) It is hardly open to question but that large quantities of silica dust were continuously expelled in these rooms during the time of plaintiff's employment. At times it was so bad that the employes left the room to get air. In the iron foundry, a crew of laborers scraped dry sand from the molders' floors and runways into piles, without dampening or wetting, which created dust. Dust was created by riddling this dry sand through a sieve and by dumping of molds. There was evidence that this dry sand could have been dampened, that the riddling and the dumping of the molds could have been done out of the presence of the employes. Also, there was evidence that the molds could have been conveyed by a conveyor system, dumped over a grate, and the dust exhausted by a down draft. It was shown that such methods are practical.
In the brass foundry, dust was created by the operation of a machine called a sand-cutter. This machine was power driven and consisted of a hopper into which molds were dumped. This machine operated at high speed and the sand was mixed and thrown with great force. Clouds of dust were caused by this operation, of such density that the workers were required to leave the room for air. There was evidence that his machine could have been isolated. The situation was called to the attention of a foreman, but the manager thought the expense would be too great and nothing was done about it. Ventilation in both foundries consisted of nothing more than the natural ventilation from the windows. An exhaust fan was suggested by plaintiff to defendant's superintendent, but again nothing was done on account of the expense. It was shown that numerous methods are possible and practicable for protecting the employes from the inhalation of dust. In the spring of 1939, two years before plaintiff became totally disabled, defendant sent him to an X-ray specialist for physical examination, and his condition then became known. Notwithstanding knowledge of this condition, he was permitted to remain at his employment until he became completely and permanently disabled.
There is not the slightest doubt but that plaintiff contracted the disease complained of while employed by the defendant. We are satisfied that the question as to whether such contraction resulted from defendant's negligence was a question for the jury. We think, as was held in McBeth-Evans Glass Co. v. Brunson, 70 Ind.App. 513, 122 N.E. 439, under similar circumstances, that defendant knew, or by the exercise of ordinary care could have known, of the dangerous consequences likely to follow from plaintiff's exposure, and that by the exercise of ordinary care the situation resulting in such exposure could have been rectified or at any rate greatly improved. Also, in Illinois Steel Co. v. Fuller, 216 Ind. 180, 23 N.E.2d 259, the court, in response to defendant's argument (the same argument is made here) that its duty was discharged by providing window ventilation, 216 Ind. on page 190, 23 N.E.2d on page 264, stated:
"There was evidence that this was insufficient and that the situation could have been rendered less hazardous and the injury avoided by means of fans and glass enclosures which would not have impaired the efficiency of the plant. Since there was some proof to this effect, a question of fact was presented to the jury and ...