Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
George Maty, the original plaintiff in this case, worked for the defendant from October, 1928 until November, 1933. For almost the entire first four years, he worked in the silicate department of the defendant's plant and for most of the last year in the phosphate department. In the latter part of 1931, he developed a cough accompanied by other distressing symptoms which grew progressively worse. In November, 1933 his condition was diagnosed as an abscess on his lung.
Maty brought suit to recover damages for his injury on the ground that his condition was caused by the inhalation of soda ash dust and other harmful substances while working for the defendant and that the defendant was negligent in failing to warn him of the dangers of this dust, in failing to provide proper ventilating facilities or to take any other measures for his safety and protection.
The case was tried to the judge and jury and on June 19, 1936 the jury returned a verdict for Maty.
On June 23, 1936 the District Court entered judgment on the verdict, but on motion by the defendant for a new trial or judgment non obstante verdicto, the court, on July 14, 1936, set aside the original verdict, vacated the judgment for Maty, and, apparently, in the absence of the jury, directed the entry of a verdict of "no cause of action" and entered judgment for the defendant thereon. The reason given by the learned trial judge for this action was "that there is not sufficient knowledge attributable to this company" of the dangers of soda ash and the other dusts. From the judgment so entered, Maty appealed, but pending the appeal, he died. His widow, Susie Maty, as administratrix of his estate, has been substituted as plaintiff in his place.
The only question here involved is whether or not the evidence was sufficient to sustain the original verdict for the plaintiff. In determining this question, the evidence must be considered in the light most favorable to the plaintiff with all legitimate inferences drawn in her favor. 5 C. J. Secundum, Appeal and Error §§ 1671, 1672, pp. 788 to 792; Cervona v. Delaware, L. & W.R. Co., 95 N.J.L. 246, 114 A. 14; Bencke v. Weltersbach, 108 N.J.L. 430, 158 A. 752; Wilkinson v. Walsh, 115 N.J.L. 243, 178 A. 721.
With the exception of the question of the applicability of the Workmen's Compensation Act, R.S.N.J. 1937, 34:15-1 et seq., which was not raised by either party, the issues here presented are practically identical with those raised in the case of Boal v. Electric Storage Battery Co., 3 Cir., 98 F.2d 815, decided by this court. Since the injury here involved arose in New Jersey, the law of that state is controlling. 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.
Maty worked approximately four years in the furnace room of the silicate department where silicate glass was manufactured. In the process of manufacture, soda ash and sand were mixed in the room adjoining the furnace room with which it was connected by doors in a wall of corrugated sheet iron. This mixture was then conveyed to hoppers from which it was allowed to flow gradually into the furnaces, which were kept at approximately 2200 degrees fahrenheit. In the furnaces, this mixture liquefied and was then discharged into settlers to clarify. After ten days it was stored in tanks according to quality.
Maty controlled the speed of the flow of the mixture from the hoppers into the furnaces, and also tended the fires.
The air in the furnace room was almost always filled with dust of soda ash and sand. The testimony of Maty shows that the chutes above the furnaces had holes in them; that when the mixture stopped flowing down these chutes, he had to hit them to start it flowing again; that when he did this, the mixture fell "like water" in great quantities through these holes, causing huge clouds of dust; that additional dust also came into the furnace room through the doors connecting it with the mixing room, which were usually kept open; that after the defendant began manufacturing metasillicate in 1931 in an adjoining room, additional dust found its way into the furnace room from that source; that, as a result, the air in the furnace room was always laden with soda ash and other dust; and that the temperature in the furnace room was quite high, which caused him to perspire freely both in summer and winter.
During 1931, Maty developed a severe skin irritation, and also a carbuncle, which required an operation in the hospital. This caused him to lose about 12 weeks of work, during the first five of which he was confined to the hospital. Upon returning to work, he was given outside employment for about three weeks. During this time his skin irritation appeared to clear up. He then went back to work in the furnace room, where conditions remained unchanged, and his skin irritation reappeared. At one time it was so bad that there was no skin at all under his arms where he was raw, swollen and discharging a "yellow water".
About that time, he developed a cough accompanied by fever, cold sweats, shortness of breath, lack of sleep, lack ...