Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The plaintiff, Gaetano Canonico, appeals from the judgment of dismissal entered against him by the Hudson County Court at the conclusion of his case. Mr. Canonico sought to recover damages allegedly suffered by the inhalation of non-toxic cellulose acetate dust during his employment at the defendant's place of business.
The plaintiff's proofs are substantially as follows: He worked in the pulverizing department in defendant's manufacturing plant, No. 290 Ferry Street, Newark, New Jersey, from 1940 until February, 1949. The building in question is three stories in height, on the first floor of which there was [11 NJSuper Page 448] a hopper for each of two pulverizers, in the basement a grinder and on the third floor several rotex machines or screens, two for one pulverizer and four for the other. The cellulose acetate material was dumped into the hopper, it then descended to the basement where it was ground, after which it was taken by an elevator from the basement to the rotex machines on the top floor. It then went through a chute into bags to the hopper floor and the coarser particles which did not pass through the screens or rotex machines were returned to be ground over again. The operation was unquestionably a very dusty one. The only ventilation were windows on the one side of the building which were closed in the winter. There were no blowers or fans and at times there was one and one-half inches of dust on the floor and 400 pounds of dust, more or less, would be swept from the floor in one day. The pulverizing room was swept frequently and a large vacuum cleaner was used in addition to the mechanical sweeping. According to the plaintiff, the dust "went all over him, his skin, face, nose, throat." There was supporting testimony of a fellow employee "that he could not see through the dust in the room." When the rotex screens were cleaned with an air hose, it caused the dust to go all over; Canonico and others "who worked on this floor had to take a shower every night to clean themselves" and one of the workmen "used an air hose to shoot the dust off him before he took a bath;" masks were provided by the employer but "could not be used because they had to be cleaned every three minutes and the workmen did not have time;" at the time he started in the pulverizing room, plaintiff did not use a mask; around the beginning of 1948, he used a mask for two or three minutes and found it full of powder inside and could not, therefore, use it any more; he was never informed by anyone about the use of the mask nor what might happen to him if he did not use it. Samples of the dust taken from the pulverizing room contained particles of ten microns or less and particles of that size represented 75% of the dust sample. When plaintiff began his employment in the pulverizing room he stated his health was good; that in November, 1948, he first felt the
effects of the inhalation of the dust and sought medical aid in January, 1949; that he has not regained his health since and is suffering from a pulmonary congestion due to bronchitis and bronchiectasis involving the lower lobes of the lung, and a chronic pleuritis, causing a paralysis of the left diaphragm. Dr. Crecca, an expert in diseases and surgery of the chest, testified that it was his opinion that there was a causal relation between the employment and the plaintiff's disease, known as pneumoconiosis, although he admitted that cellulose acetate dust is an inert organic dust and that he had never previously known or treated anyone who had suffered specifically from the inhalation of cellulose acetate dust.
At the conclusion of the plaintiff's case, on defendant's motion, the court directed that judgment be entered for the defendant "on the ground that clearly the plaintiff has failed to sustain his burden of establishing that the defendant was negligent and that that negligence was the proximate cause of the condition it has been testified the plaintiff suffers from."
Plaintiff contends that (1) his proofs presented a prima facie case of liability and, therefore, the court erred in entering judgment for the defendant; and (2) the court erred in refusing to permit the witness, Shelanski, to "give his opinion with respect to industrial hazards."
The posture of the proof at the end of the plaintiff's case was that while the conditions under which the plaintiff worked were very dusty, there was no proof that the defendant had failed to conform to the standard that had been adopted and was in use in the conduct of similar businesses. In fact, the plaintiff did not offer proof of any standard for the elimination of the dusty conditions experienced at his place of employment or that the defendant had failed to provide necessary ventilation or proper methods for the removal of the dust. On the contrary, the proofs established that cellulose acetate dust is non-toxic and that previously, although the operation had been in effect for many years, no other employee had been known to suffer the ill effects claimed by plaintiff. Dr. Crecca, plaintiff's medical expert, residing and practicing many years in the community where the defendant's plant
is located, admitted that he had never previously had any case where illness or disease had been attributable to the inhalation of cellulose acetate dust; that there were a number of other causes that might equally produce the condition from which he found the plaintiff was suffering.
We recognize the fact that there have been many cases where an inexperienced employee has recovered against a master for diseases due to poisoning or infection, where the employer knew that the work assigned to the employee contained such risks, failed to warn him of their existence and to instruct him as to the precautions necessary to avoid them, but we do not find any case where an action has been successfully maintained for disease, whether of sudden or slow infection, except where the employer had a knowledge of the risk superior to that which the servant had, or might reasonably be expected to have; and that either the knowledge of the servant, or the obvious character of the danger and the means necessary to avoid or minimize it, or, on the other hand, the master's ignorance that there was a reasonable probability or danger of such poisoning or infection, would negative a right of action at common law. On the other hand, the defendant is liable for legal damage caused by disease where he is guilty of wrongful action toward one standing in no voluntary relation to him, consisting in an omission to perform a duty imposed on him by such a relation. We find in the books cases involving the incurrence of diseases following a neglect of duty on the part of gas companies, druggists, and purveyors and manufacturers of food, which are said clearly to show that the common law recognizes a right to health, the violation of which by positive action between strangers is a legal wrong. But, with respect to actions for occupational diseases not provided for by statute, an examination of the decisions discloses a decided conflict. On the one hand, there are many statements, often pure dicta , that no action lies at common law for damages for an occupational disease, and this view has been crystallized by some decisions to the same effect, such as that in McCreery v. Libby-Owens-Ford Glass Co. , 363 Ill. 321, 2 N.E. 2d 290, 105 A.L.R. 75 (Ill. Sup. Ct. 1936). In fact, some of these
statements and decisions seem broad enough to exclude any recovery of damages in an action at law for an occupational disease, even where there has been some negligence on the part of the employer, such as might be found in his failing to provide a safe place in which to work, or even in an alleged failure on his part to warn the servant of the dangers involved, although the employer possessed, or was in a position to be ...