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Crowley v. Elgin

OPINION FILED MARCH 8, 1954.

JOHN CROWLEY, CHARLES KERN, AND RICHARD T. CRICHE, APPELLEES,

v.

ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, APPELLANT.



Appeal by defendants from the Superior Court of Cook county; the Hon. JOHN J. LUPE, Judge, presiding. Heard in the first division of this court for the first district at the June term, 1953. Judgments affirmed with remittiturs: otherwise, judgments reversed and causes remanded with directions. Opinion filed March 8, 1954. Released for publication March 24, 1954.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

John Crowley, Charles Kern and Richard T. Criche filed a complaint in the superior court of Cook county against the Elgin, Joliet and Eastern Railway Company under the Federal Employers' Liability Act for occupational dermatitis resulting from contact with diesel fuel oil and lubricating oils in the monthly inspection and servicing of defendant's diesel locomotives. A jury returned separate verdicts in favor of each plaintiff, assessing Crowley's damages at $42,800, Kern's at $28,900 and Criche's at $19,500. Defendant's motions for judgments notwithstanding the verdicts or, in the alternative, for a new trial, were denied. A separate judgment was entered in favor of each plaintiff, to reverse which defendant appeals.

The evidence establishes that plaintiffs contracted occupational dermatitis from coming in contact with diesel fuel oils and lubricating oils in the monthly servicing and inspection of defendant's locomotives in the roundhouse at defendant's yard at East Joliet, Illinois. The plaintiffs and the defendant were engaged in interstate commerce. The word "dermatitis" means inflammation of the skin. The causes of dermatitis are varied. It may be caused by bacteria, food or other substances taken internally, virus, pus-forming organisms and fungus. Contact dermatitis, with which plaintiffs are afflicted, results from external contact with some substance which is irritating to the particular individual. Almost any substance, from household articles to industrial processes may cause a contact dermatitis in a susceptible individual. This is true also of chromates in sufficient concentration and of petroleum derivatives. Substances which will cause a dermatitis in one individual may not cause it in another; individual resistance varies. The external factors involved in contact dermatitis are the extent and frequency of the contact with the irritating substances and the time of individual exposure; personal factors are the susceptibility of the individual, the lightness of his complexion, his age as affecting his capacity to harden resistance to a new exposure, or his loss of resistance to a previously nonirritating exposure and personal cleanliness in avoiding unnecessary contact with the irritant and in removing the contacted substance by promptly washing the exposed parts of the body. To effect a cure, contact with the offending substance must be terminated. If kept away from the irritation a sufficient length of time, depending usually on the length and extent of prior contact, the individual may become entirely cured, and he may, by following proper precautionary measures, be able to return to his former occupation without further trouble.

The action is predicated upon alleged violation of the Federal Employers' Liability Act, in that the defendant was negligent in failing to take reasonable precautions, discoverable by the exercise of ordinary care, to protect plaintiffs from the occupational hazard inherent in their work in and about diesel fuel and lubricating oils, and that as a result of one or more of the negligent acts of the defendant, each of the plaintiffs became and is afflicted with dermatitis. Defendant maintains that it cannot be held liable for the contact dermatitis with which each plaintiff became afflicted because the evidence fails to prove that it had actual or constructive knowledge of the hazard of dermatitis, or that it was negligent as charged. John Crowley was first employed by defendant in 1913, and except when furloughed for lack of work, he had worked continuously for it since 1922. He was 61 years of age at the time of trial. He was classified as a general machinist. Between 1920 and 1947 he did general repair work in the "back shop" at Joliet on steam locomotives. In 1936 defendant began to replace its steam locomotives with diesel locomotives. The change-over from steam to diesel locomotives was completed by the end of 1949. Crowley had worked in the roundhouse on some occasions and was familiar with conditions there. In February 1947, by virtue of his seniority, he "bid in" upon a vacancy in the roundhouse at East Joliet, and for the first time started to work on diesel locomotives. He was in good health. Prior to February 1947, he had no contact with diesel fuel oil. He had an eighth grade education. He had not been instructed by the defendant as to the possible ill effects of coming in contact with this oil. No orders, written or otherwise, were received by him on this subject from his superiors. Prior to November 1947, when he first became afflicted with dermatitis, he had no skin affliction of any kind.

Each day a diesel locomotive would be brought into the roundhouse for monthly inspection and servicing. The work would be done by the crew of eight to ten men, two of whom were machinists and two machinist's helpers. In removing the fuel oil filters, the machinist would come in contact with the fuel oil for a few minutes. In removing the lube oil filters and the sump strainer and inspecting the crankcase and bearings, lubricating oils would get on his hands. He did this work every other day. Neither he nor the other plaintiffs had anything to do with mixing the cooling fluid or filling the cooling system or the fuel oil tanks of the engine. In changing the packing in the water pumps, his hands would come in contact with the cooling fluid. When a leak permitted the oil and cooling fluid to mix — and it was hard to say how often that would happen — his only contact with the mixture was that in the water pump and shaft. It was the job of the boiler-maker to drain off the cooling fluid and of the pipefitter to drain off the oil. In this work his hands and other parts of his body would come in contact with diesel and lube oils. He came in contact with these fuels every working day from February 1947 to November 1947, when he first developed a rash on his hands and arms as far as his elbows. He first went to his family physician in Joliet on November 20, 1947. When his condition did not improve he asked his foreman to send him to the hospital. He was then sent to the Silver Cross Hospital in Joliet, where he saw Dr. William A. Meadows, the local surgeon for the defendant. Dr. Meadows testified that according to his recollection and records, Dr. Albers, his assistant, treated Crowley.

Dr. Meadows diagnosed Crowley's condition as contact dermatitis from diesel oils. He continued to treat him until after January 1948. When the condition failed to improve he sent Crowley to the Northwestern University Clinic in Chicago. On January 2, 1948, Crowley went to the Public Health Institute in Chicago, which referred him to the Northwestern University Clinic, where he was examined and treated 18 to 20 times. When Dr. Meadows first saw Crowley on December 22, 1947, he made a report to defendant's chief surgeon, Dr. R.J. Bennett in Chicago, on the forms provided by the defendant. In that report he found that Crowley's condition was caused by "working near diesel oil" and made a diagnosis of Crowley's malady as "contact dermatitis from diesel oil." Upon the advice of the dermatologist at the Northwestern Clinic, Crowley remained away from work until the latter part of January 1948; then he worked four days. On February 7, 1948, he was again examined by Dr. Bennett, defendant's chief surgeon, who said he would release him to work involving "no dirt, grease or oil." Under the machinist's union agreement, Crowley could not take another machinist's position by displacing another man. He could only bid in on a vacancy. Similarly, the defendant could not transfer him without his consent or refuse to allow him to work at any job to which his seniority entitled him. He reported for work on February 9, 1948, but did not actually return to work until February 17, 1948. When he returned to work he had a conversation with Paul Verd, defendant's superintendent of motive power, who read and discussed with him a letter, the substance of which was that the doctors had advised him not to work with oils and greases, but that if he returned to work he did so upon his own responsibility.

At this time Crowley had been advised by his family physician that his work was the cause of his dermatitis and by the two company doctors not to return to work around diesel oil, and the dermatologist at the Northwestern Clinic had advised him to remain away from diesel work. He returned to his old job on February 17, 1948, which the defendant could not refuse him or transfer him from without his consent. Although there have since been vacancies in jobs in the back shop upon which he could have bid successfully by virtue of his seniority, he remained at that same job until he bid in another roundhouse job in August 1952. According to the stipulation of the days off duty, Crowley lost 46 days from work through February 1948. He lost several days each month thereafter. The rash spread to his face and neck and later to his legs and feet. He went to Hot Springs for three weeks and his condition improved. He was off work for several weeks in the summer of 1949 because of a spontaneous hemorrhage in the left leg, and during this time away from work his skin "improved tremendously." When he returned to work, the eruption returned within a few days. He was off work because of his skin condition from May 1 to August 10, 1952, losing a total of 73 working days. He went again to Hot Springs. At the end of that period the condition of his skin was improved. At the time of the trial in December 1952, he had dermatitis in a "milder state" on his hands, wrists, forearms and ankles. In the opinion of Dr. Milton Robin, this condition was permanent because of the length of time and frequency of his exposure. Crowley had lost approximately 329 days from his work on account of the dermatitis from December 1947 to September 1952. His lost time and medical expenses total approximately $5,000.

Charles Kern had worked for defendant as a pipefitter since November 1915, and was the first man on the seniority list. He was 68 years old at the time of the trial. Prior to August 1948, his work as a pipefitter had been assembling, dismantling and repairing the pipes of steam locomotives. Upon the conversion to diesel operations, the character of his work changed and thereafter he worked exclusively on diesel locomotives. His work included tightening, removing and repairing the pipes of locomotives. In disconnecting the pumps and the pipes of the oil systems, his hands would come in contact with the cooling fluid and the fuel oil. Sometimes some might splash on his neck, face or feet. In January 1949, he first noticed a reddening of his hands and a burning irritation. He thought the weather had chapped his hands. Early in February he went to Dr. Meadows, who prescribed an ointment, and then hospitalized him for two weeks. Prior to February 1949, he was in good health and had no skin affliction. He had never made a study of the ill effects of working with diesel oil and did not know prior to that time that contact with the oil would affect him. No one had ever told him of the ill effects therefrom. He first saw Dr. Meadows on February 5, 1949, who found that he had "an itch, rash, on the back of his hands and forearms." On Dr. Meadows' orders he was hospitalized for two weeks. Dr. Meadows treated him for a time and when he apparently did not improve he sent him to defendant's dermatologist, Dr. Irving M. Cobin. Dr. Meadows made a final report of his examination of Kern to defendant's chief surgeon, Dr. Bennett, in which he found the cause of Kern's condition: "Working in diesel oil developed rash on hands" and made a diagnosis of "contact dermatitis of hands and forearms."

Kern returned to work for a few days in April 1949, and the rash flared up again. He went back to Dr. Cobin for treatment and at his direction remained away from work until June 1, 1949. He lost 90 days from work in this period. He continued to work in the roundhouse until the middle of July 1949. Then as the rash returned, at the suggestion of Dr. Bennett and on his own volition, he transferred to the back shop. After that, on account of the condition of his hands, he lost 3 days from work in August and September 1949, 3 days in 1950 and 4 days in 1951, when his work would occasionally bring him in contact with diesel oil and his rash would flare up. At its worst in April 1949, he had eruptions on his hands, fingers, wrists, arms, temples, neck, buttocks and thighs. By August 1949, the condition had nearly cleared up. At the time of the trial the skin on the fingers, hands, wrists and forearms was "slightly reddened, thickened and dry," the elbows, temples, back, buttocks and thighs being clear. Dr. Robin, testifying for plaintiff, said he had no opinion whether this "fairly mild" eruption was permanent or not, and that if not further irritated, it might clear up altogether. Kern described the present condition of his spine, face and neck as "itchy" and that "since 1949 the condition of my skin has changed very little. It bothers me very bad and the irritation is still severe." He lost a total of 118 days from his work, making the salary loss during that period of time approximately $2,500.

Richard T. Criche was 52 years old at the time of the trial and had 32 years of seniority as a machinist. Prior to 1945 his work had been regularly in the back shop. In 1945 he bid in a job in the roundhouse and worked regularly on steam locomotives until the conversion to diesel operations in the middle of 1948. His work on diesel engines was of the same general nature as Crowley's. In the early part of 1948 he was assigned to work on diesel locomotives exclusively. In connection with his work on these engines his hands would become saturated with fuel oil and it would sometimes get on his face and clothes. Prior to commencing work on the diesel locomotives he did not know anything about danger from fuel and lubricating oils. No one had given him any instructions about the danger of exposure to the oils. He had an eighth grade education and had never had any training in this connection. The defendant did not furnish him with protective ointments, soaps, scrubbing fluids, gloves or other protective devices prior to June 1949. In June 1949 his skin developed a burning and itchy sensation and had little water blisters. He saw his foreman, who sent him to Dr. Meadows. He was then referred to Dr. Cobin, who commenced to treat him on June 7, 1949. He remained under the care of Dr. Cobin until June 28, 1951. Dr. Cobin diagnosed his ailment as "contact dermatitis." Dr. Meadows, in his official report to Dr. Bennett dated June 7, 1949, found that Criche had developed a rash on both hands from "working in diesel oil," and diagnosed his condition as "contact dermatitis." He saw Dr. Lawless in Chicago 11 times from March to June 1950. He went to Dr. Robin for examination but not treatment on two occasions.

In July and August 1949, he worked as a temporary foreman where he was not exposed to diesel oils and cooling fluids and the eruption cleared gradually. Back at his regular job the rash broke out again and Dr. Cobin took him out of service in January 1950. He was out of service until March 30, 1950, losing 83 days' work. He then gave up the roundhouse job and returned to work in the back shop, where he was only occasionally exposed to oil and dirt on the wheels of the locomotives he was working on. Occasionally he was required to work in the roundhouse a day or two at a time to fill a vacancy, and on account of a reduction in force during the steel strike, he went back to the roundhouse in June 1952, where he started to get a small rash. He was off work from August 7 to October 20, 1952, because of an accidental injury to his right hand. He then returned to the back-shop job. He lost approximately 199 days from his work, or a total salary loss of approximately $1,500. At the time of trial he had a "mild amount of dermatitis on the tops of his hands and wrists," with slight thickening of the skin and increased pigmentation. His condition was "approaching normality" and Dr. Robin had no opinion whether it was temporary or permanent.

Plaintiffs were permitted to introduce evidence as to the effects of chromate solution used in the cooling system of the diesel locomotives on their counsel's representation that at times the cooling fluid and fuel oils became mixed together as the result of leakage. There is evidence to support the theory on which the testimony as to the chromate solution was introduced. Defendant purchased its diesel fuel oil from Standard Oil Company under specifications. For use as an inhibitor of scale formation and electrolytic action in the cooling system of its locomotives, the defendant purchased from Dearborn Chemical Company a product known as No. 517, whose formula was a trade secret, but which was about two-thirds bichromate, which was within the general range of the chromate content of similar products. Used in a ratio of 50 ounces of compound to 100 gallons of water, this produced a solution of 1 to 384, or less than 3/10ths of one per cent chromate. There was no evidence that defendant's specifications for diesel fuel oil or the cooling solution differed in any respect from those commonly used by other railroads.

Prior to November 1947, when Crowley's dermatitis first appeared, Dr. Bennett, defendant's chief surgeon, knew that chromate in powder form and petroleum in certain concentrations caused skin irritations to some susceptible people. He had never heard of any case of a railroad employee claiming to have contracted such dermatitis. Defendant's general superintendent, Paul Verd, had worked with diesel locomotives since 1935, first in the servicing department of Electro Motive Division of General Motors, which manufactures diesel locomotives, then in successive positions with defendant in charge of diesel operations, interrupted by four and a half years' service in diesel submarine motor maintenance during World War II. He had never heard of any case of dermatitis due to diesel fuel oil until Crowley's case. It was known in 1947 that certain individuals suffered ill effects by coming in contact with solutions containing chromate. Books had been published on this subject. Dr. Cobin testified that it had been known for 22 years that certain oils would produce dermatitis. When he saw Kern and Criche he knew that they had been in contact with fuel oil. When Dr. Meadows first saw Crowley on December 22, 1947, he knew that his condition was caused from "working near diesel oil" and that this plaintiff was afflicted with contact dermatitis from fuel oil, and officially reported to Dr. Bennett on Kern on February 5, 1949, and on Criche on June 7, 1949. On December 22, 1947, Dr. Meadows issued an order that Crowley was not to work around diesel oil. Dr. Louis Schwartz, the senior author of the outstanding text on "Occupational Diseases of the Skin," and who was the organizer in 1930, and until his retirement in 1947, the head of the dermatology department of the United States Public Health Service, said that at the time of his retirement he had heard of no case of dermatitis of a railroad employee from diesel fuel oils or cooling solutions, and that so far as he knew up to that time there had not been any case of dermatitis in the railroad industry in the use of diesel fuel oil and that he first learned of any such cases a year or two later.

Plaintiffs' counsel interrogated the medical witnesses about their familiarity with certain medical publications, but none of the articles were admitted into evidence. In response to a question as to the period of time the effect of chromate had been known, Dr. Robin referred to the textbook "Occupational Diseases of the Skin" of which Dr. Schwartz was a co-author, published in 1947, that dealt with and discussed the various industries in which chromates were used and the various reactions from exposure, and in response to a similar question as to knowledge of the effect of petroleum, he referred to the same textbook. On cross-examination he was shown a copy of the book and admitted that in the chapters on dermatitis caused by chromates and petroleum derivatives, there was no reference to those substances as used in the railroad industry. Later Dr. Schwartz testified that not until a year or two after July 1947, did he hear of any such dermatitis cases in the railroad industry. Dr. Robin also referred to an article in the Foreign Letters Section of the Journal of the American Medical Association for October 10, 1931, dealing with skin sensitivity to chromate compounds in the printing industry, and to an article by Dr. Schwartz in the Journal of ...


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