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Downing v. Oxweld Acetylene Co.

Decided: December 21, 1933.

ANTHIME DOWNING, PLAINTIFF-RESPONDENT,
v.
OXWELD ACETYLENE COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On appeal from judgment of the Essex County Court of Common Pleas.

For the appellant, Kellogg & Chance.

For the respondent, Edward G. Burke (Arthur F. Mead, of counsel).

Before Brogan, Chief Justice, and Justices Trenchard and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Respondent sued to recover damages sustained, it is said, as the result of the negligence of appellant, his employer, in failing to provide him with a reasonably safe place to work. The complaint, stating a cause of action under the common law, charged that respondent, whose work was the repairing and testing of blowpipes, suffered disease as the result of exposure to noxious gases, fumes and other injurious

matter. At the trial respondent claimed that his diseased condition was the result of carbon bisulphide and carbon monoxide poisoning. There was a verdict for respondent, and this appeal is from the judgment entered thereon.

Appellant's first point is that the trial judge erred (1) in denying its motion for a nonsuit, and (2) in refusing to direct a verdict for appellant.

It is insisted that there was no evidence of negligence on the part of appellant. We think there was. Respondent, in 1928, at the age of twenty-eight years, and apparently in good health, entered the employ of appellant, who was engaged in the manufacture of equipment and appliances for the use of acetylene. For a time respondent served in the capacity of a polisher, and later was assigned to the work of repairing and testing blowpipes. It was necessary to use acetylene in testing the appliances manufactured by appellant.

There was evidence tending to establish the following matters of fact: carbon bisulphide gas was present in the workroom to which respondent was assigned. There was some carbon monoxide also. These are poisonous gases. They were generated in the testing processes of appellant. The ventilation was inadequate to carry off these poisonous gases, and protect respondent from physical injury therefrom.

It is conceded that these are poisonous and extremely harmful gases "when present in the proper concentration." It is appellant's contention that these gases were not present in such concentration as to physically injure respondent. But there was evidence that respondent's physical condition was the result of carbon bisulphide and carbon monoxide poisoning. Moreover, one of appellant's experts agreed that while small quantities of these gases "in themselves are harmless, if repeated continuously," they "would cause damage."

There was ample evidence of a lack of proper ventilation. Appellant, apparently, conceived it to be its duty to ventilate the workroom. It is insisted that the fan installed was one of "a standard type used for certain classes of ventilation." ...


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