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Rakowski v. Raybestos-Manhattan Inc.

Decided: October 14, 1949.

MATILDA RAKOWSKI, PLAINTIFF-APPELLANT,
v.
RAYBESTOS-MANHATTAN, INC., A CORPORATION, DEFENDANT-RESPONDENT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

The dispositive issue raised by plaintiff's appeal is whether the trial court erred in directing a verdict in favor of defendant.

Plaintiff, Matilda Rakowski, was twenty-five years of age at the time of her employment by defendant corporation to fluoroscope rubber beltings to determine if there were any defects therein. The X-ray department, where she was employed, consisted of two rooms, one wherein the fluoroscopic X-ray machine was located and an adjacent room where she operated it. The rubber belts were placed on pulleys in the room where the fluoroscopic machine was located, outside of which room there was a control box from which the plaintiff operated the machine. She operated the machine only in the outside room. By looking through a leaded glass window located in the wall of the lead lined room and above the control box, plaintiff viewed the fluoroscopic machine while it was in operation. When she had completed the viewing she would stop the machine, go inside with a helper to take the belt off, change its position and inspect it again from the outside room in the same manner. The machine was operated at a kilovoltage of from 85 to 110 and at a milliamperage of 4 to 5. Plaintiff satisfactorily passed a physical examination at the defendant's plant hospital at the time of her employment. Prior to that time she had enjoyed good health. Plaintiff contends that the proofs establish a prima facie case that the impairment of her health, described as premature menopause and telangiectasis in the central portion of her face, showing fine superficial capillaries, indicating that the skin had been damaged and was prematurely aging, was attributable to the X-rays to which she was exposed and that the negligence of the defendant was the proximate cause of her injuries.

Plaintiff offered in evidence the "American War Standard Safety Code for the Industrial Use of X-rays" approved May 31, 1945, and a revised safety code for the industrial use of

X-rays approved April 15, 1946, originated by a group of recognized scientists through the American Standard Association. These codes establish the roentgen as the international unit of quantity used as the symbol for the measurement of X-rays and gamma rays, and milliroentgen is a subunit of the roentgen and is equal to 1/1000 of the roentgen. The codes classified different types of installations, viz.: Class A, Class A-1, Class B, Class B-1 and all other installations, which do not conform to these four, known as Class C. The proofs reasonably establish that defendant's equipment in the construction and operation of its fluoroscopic apparatus qualified as Class A, totally protective installation. One of the requirements of the code necessary to qualify for Class A installation provides:

"(b) The dosage rate in milliroentgens per hour at any accessible point outside of the protective enclosure is not greater than 12.5 mr per hr (0.0125 r per hr) when the radiation beam is adjusted to give the maximum dosage rate at the point in question, with the X-ray generator running at its rated capacity;"

The exposure of a person for an eight hour day, six day week, to 12.5 milliroentgens per hour, under the circumstances here, is the permissible daily dose.

Appellant argues that she established a prima facie case of negligence against the defendant as the proximate cause of her injuries; that, in the light of the proofs, the questions as to whether defendant's installation was in conformity with the standard practice in comparable industry, whether there was any negligence chargeable to defendant in the operation of the machine, and whether such negligence was the proximate cause of plaintiff's injuries, raised factual issues which should have been submitted to the jury for its determination; and contends, therefore, the court erred in directing a verdict against plaintiff. It is academic to state that the trial court cannot weigh the evidence, but must accept as true all testimony that supports the view of the party against whom the motions are made. Skiba v. Hmieleski , 106 N.J.L. 597 (E. & A. 1929). Where fair minded men might

honestly differ as to the conclusions to be drawn from the facts, the question at issue should go to the jury. Lipschitz v. N.Y. and N.J. Produce Corp. , 111 N.J.L. 392 (E. & A. 1933).

It is the general rule that the mere fact that an instrumentality may become dangerous to others does not constitute its possessor an insurer against injury that may result therefrom. Liability for negligence in respect to dangerous instrumentalities, as liability for negligence generally, arises from the failure to use due care. A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business which involve little or no risk. The law exacts of one who puts a force in motion that he shall control it with a skill and care in proportion to the danger created and with appliances which, in view of the circumstances, are reasonably safe. In other words, the essential requirement of due care under the circumstances necessarily implies that the care required to prevent injury to others in using a dangerous instrumentality is a great or high degree and every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. Beck v. Monmouth Lumber Co. , 137 N.J.L. 268 (E. & A. 1947).

"It is a corollary of the maxim ' sic utere tuo ut alienum non laedas ' that everyone shall investigate, inspect, and test the instrumentalities maintained by him, for the purpose of determining the possibility of perils therein. Every peril, it is safe to say, including such as are termed 'latent' or 'hidden,' need not be discovered, since liability for negligence in keeping a dangerous instrumentality is not absolute. If, however, common experience has demonstrated that dangers lurk in the method adopted or in the instrumentality maintained by a ...


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