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Shelton v. Thomson.

March 2, 1945

SHELTON
v.
THOMSON.



Author: Evans

Before EVANS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.

EVANS, Circuit Judge.

Plaintiff brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and recovered a verdict and a judgment, for injuries sustained by him because of alleged carbon monoxide poisoning. He operated a crane in a storehouse of the Chicago and North Western Railway Co., the crane being used to lift wheels and other supplies, which were in turn used in the repair of defendant's freight cars. Plaintiff claims that his continual inhalation of carbon monoxide gas from the crane's gasoline motor from March or April of 1942 until the fall of 1942, resulted in permanent disabling injury. It is his contention, accepted by the jury, that the monoxide gas would have been excluded from the cab in which plaintiff was seated in the crane, if there had been a sound, tight fitting asbestos gasket. The gasket was defective, however, and though plaintiff requested another, none was forthcoming, and as a result, the gas escaped and he was poisoned. He attempted to stop the leaking by caulking, but failed.

There are two questions here: (1) The applicability of the Federal Employers' Act to plaintiff's employment is challenged. (2) The trial court's refusal to instruct the jury on the necessity of "reasonable certainty," where damages for permanent injuries are included in the verdict.

Plaintiff was forty years of age, and had been employed by the C. & N.W. Railroad for thirteen or fourteen years. He started work on the crane involved in this controversy, when it was new, in 1937. He left this job but came back again to work on it in March or April of 1942.

The crane was provided with a winter and summer fan, which, by virtue of the construction of its blades, could be made to blow the heat from the motor away from the crane cab in the summer and in the winter blow it into the cab. Plaintiff's health had been good, but after working on the crane for awhile it "started to go downhill" and he "got to feeling sick and nauseated." The last of April he stayed home in bad for five days, and was attended by a doctor who is now in service. Then he returned to work. He operated the crane all summer and had a feeling of nausea all the time, but didn't know there was anything wrong with the engine at that time. On September 25th, on leaving the crane, he had a severe attack of dizziness and illness, and told his foreman that there must be carbon monoxide or some gas leaking into the cab of the crane. A check of the motor was made and a gas leakage was found, indicated by a deposit of carbon. He worked until the 30th of September, when he became so sick he was taken to a hospital where he promptly recovered. He returned to the railroad a couple of days later and, after a check-up at the dispensary, he was pronounced in "A-1 condition" and sent back to work. His foreman "told him to take it easy," and he worked around the storehouse for a couple of hours. Then he went home and to bed. He said he "couldn't move." He went back to work on January 4, 1943, working in the storehouse. Later he returned to work on the crane, doing light work, for a period of seven days. Then he was sick in bed again for eight days. When examined by a doctor he was told "to take aspirin and cough syrup." He said his family was starving so he had to go back to work, where he stayed until June 5, 1943, when "the weather got so hot, he had to stay home."

Both sides presented expert testimony as to the symptoms and effect of carbon monoxide poisoning. There is this agreement in the testimony. Much depends upon the amount of carbon monoxide inhaled. Above a certain percentage there is death, or permanent injury, insanity, etc., and below a certain percent there is but temporary indisposition, and recovery is prompt. Plaintiff's testimony of his subjective symptoms jibed with the symptoms described by his expert witnesses.

One doctor, testifying for the defendant, stated that he believed plaintiff was suffering merely from an inferiority complex. He examined him for carbon-monoxide poisoning and found no symptoms of it whatsoever. He stated that if a certain laboratory report of 40% carbon-monoxide content in plaintiff's blood were correct the plaintiff would be unconscious or dead. He also stated that with a 10 to 20% content, the face and mucous membrane would be cherry red from the carbon monoxide content of the blood.

This factual statement is made only because appellant assigns error in the court's instruction on the quantum of proof necessary to establish permanent injuries.

Appellant contends that plaintiff does not come within the protection of the Federal Employers' Liability Act. This Act was amended in 1939 to read:

"Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter." 45 U.S.C.A. § 51.

Prior to its amendment the Act provided for the employer's liability to an employee for injury suffered only when the employee was engaged in "such commerce" which phrase referred to "commerce between any of the several States."

Appellant argues that plaintiff, employed in the railroad's storehouse, operating a crane which hoisted car wheels into position for repair on freight trains, some of which were used in intra- and others in inter-state commerce, was not one who could conceivably be said to be engaged in interstate commerce.

However, we have before us, for construction, the amended act, not the original section. There can be no doubt but that the amendment was intended to broaden the scope of the Act to include employees whose work was related to the functioning of interstate commerce. Concededly the relationship between the encompassed occupations and the actual transportation in interstate commerce has become more tenuous as this law has developed. It was this fact, no doubt, that caused Congress to enlarge the scope of the Act by stating that all employments in "furtherance of interstate * * * commerce" are within the Act. The word "furtherance" is a comprehensive term. Its periphery may be vague, but admittedly it is both large and elastic. It would not be an undue stretching of it to hold that one who is engaged with ...


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