Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
The plaintiff Boal, after having worked for more than 10 years as a "pickler" in the defendant's storage battery plant in Philadelphia, Pennsylvania, developed a cancer on the under right side of his tongue. He brought this suit to recover damages for his injury on the ground that the cancer was caused by the inhalation of a sulfuric acid mist or spray in the pickling rooms in which he worked, and that the defendant was negligent: 1. in failing to warn him of this danger, 2. in failing to provide ventilating facilities, of 3. in failing to take any other precautionary measures for his safety.
The case first came to trial before a judge and jury, but the jury was unable to agree and was dismissed without having reached a verdict. In the second trial the jury was waived, and the plaintiff offered in evidence the record of the previous trial. The defendant then moved for a nonsuit. Believing that the evidence did not make out a prima facie case and would not sustain a judgment, the District Court granted the defendant's motion and accordingly entered judgment of nonsuit.
The main question here is whether or not the evidence would have sustained a judgment for the plaintiff. In deciding this question the plaintiff is entitled to the most favorable inferences deducible from the evidence, and to the rejection of the unfavorable ones. 4 C.J. 764; 5 C.J. Secundum, Appeal and Error, §§ 1671, 1672, pp. 788 to 792; Corbalis v. Newberry Tp., 132 Pa. 9, 19 A. 44, 19 Am.St.Rep. 588; Shoemaker v. Williams, Pa. Super., 200 A. 255; Schroeffel v. Great Atlantic & Pacific Tea Co., Pa. Super., 200 A. 694.
In order to prevail, the plaintiff had to prove that he was injured, that his injury was caused by the defendant's negligence, and that he was not prevented from bringing this suit against the defendant by the provisions of the Workmen's Compensation Act of Pennsylvania. 77 Purdon's Pennsylvania Statutes, § 1 et seq.
As the plaintiff's injury arose in Pennsylvania, the law of that state controls the issue involved. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. , 114 A.L.R. 1487, decided April 25, 1938.
The defendant does not dispute that the plaintiff is suffering from cancer. The uncontradicated testimony shows that his condition is so serious that he will probably die within a relatively short time.
For more than 10 years the plaintiff worked for the defendant as a "pickler" in one or the other of the two pickling rooms in the defendant's plant in Philadelphia, Pennsylvania.The process of pickling used in the plant involved the immersion of lead plates of "grids" in a bath of sulfuric acid mixed with water. The strength of the solution was usually about 18% acid to 82% water. These lead plates were first treated with a paste of lead oxide in an adjoining room and were then brought into one of the two pickling rooms, each of which contained 30 to 40 large tanks capable of holding from 1000 to 1500 plates. The plates were arranged in the tanks on wooden racks or "skids" which kept them apart in order to allow the sulfuric acid solution to surround each plate completely. After they had been so arranged, the sulfuric acid solution, which had already been prepared in an adjoining room, was introduced into the tanks by means of pipes and valves. It took approximately 30 minutes to fill a tank with this solution. The plates were allowed to remain immersed in the bath for varying periods (sometimes as long as 24 hours) during which the solution was occasionally strengthened by the addition of concentrated sulfuric acid. After the plates had been pickled for a sufficiently long time, the acid solution was drained from the tanks but almost invariably an inch or two remained on the bottom. The plaintiff and the other picklers then removed the plates while still damp and placed them on trucks. The wooden racks were also removed and piled up in some place in the room out of the way. The plates and the racks were allowed to dry in the pickling rooms.
As a result of this operation, the evidence indicates that there existed in these rooms a spray or mist of sulfuric acid which caused coughing, dryness of the mouth and smarting of the skin.
Eminent and respected doctors, dentists, toxicologists and chemists testified that this mist was the promised cause of plaintiff's cancer. Dr. Calvin Smyth, a surgeon connected with the Abington Hospital in Montgomery County, Pennsylvania, in response to a hypothetical question, testified that, "in my opinion, if the facts concerning the condition of this man's employment were as they have been related to me, I believe that he developed an ulceration in his mouth as a result of the long continued exposure to sulfuric acid"; that "the man had cancer because of the unhealed ulcer and the ulcer was exposed to a condition of irritation", and that, "I think that in this man's case" the soreness in his mouth resulted from "exposure to sulfuric acid fumes over a long period of time". Dr. Basil R. Beltran, associate professor of surgery in the graduate school of the University of Pennsylvania, Chief surgeon to the Miseriocordia Hospital, Philadelphia, and the Fitzgerald Mercy hospital at Darby, testified, that the sulfuric acid fumes in the air of the pickling rooms "acted as an irritation to the mucous membranes of the mouth"; "that this irritation after a prolonged time caused an ulcer formation", and that "the cancer developed from the ulcer". Dr. Emanuel Moreno, a dentist, who had treated the plaintiff's teeth, testified that his teeth and gums had absorbed some chemical as a result of breathing fumes of some sort. Dr. Robert B. Cadman, pathologist for the Chestnut Hill Hospital, testified that the existence of the mist or spray of sulfuric acid solution in the rooms would cause dehydration of the cell; that it would cause changes in the secretions and juices of the mouth which would upset the cell function so that they could no longer manufacture hormones or enzymes "upon which the common economy of the tissue" depends. Dr. Max Trumper, author of scientific works and chemist and specialist in industrial toxicology, testified that it would cause physical damage by irritation to these cells; that the "normal course would be * * * irritation, repair, irritation, repair" until at some time "this tolerance breaks down and you get specific symptomology, the specific effects of irritation which eventually will give rise to ulceration, because that means a break-down of the biological mechanisms to neutralize this repair to overcome this persistent and protracted chemical trauma. * * * ".
This evidence is clearly within the standard of proof required under Pennsylvania law. Vorbnoff v. Mesta Mach. Co., 286 Pa. 199, 133 A. 256; Johnston v. E.E. Orcutt Garage, 103 Pa.Super. 507, 157 A. 46.
The next question is whether or not the defendant was negligent in failing to warn the plaintiff of the danger, and in failing to provide ventilating facilities or to take ...