On appeal from the Essex County Court, Law Division.
For reversal in toto -- Justices Case, Oliphant, Burling and Ackerson. For reversal as to damages only -- Chief Justice Vanderbilt, and Justices Heher and Wachenfeld. The opinion of the court was delivered by Ackerson, J.
The plaintiff, Margaret Kress, married and 41 years of age, instituted this action on June 30, 1948, in the former Essex County Court of Common Pleas against the City of Newark to recover damages for personal injuries consisting of a cancerous condition of both hands known as carcinoma. It is alleged that this condition developed from over-exposure to X-ray radiations while she was employed as a technician in the X-ray Department of the Newark City Hospital, established and maintained as a public hospital by the city pursuant to R.S. 30:9-16 et seq. The gravamen of the complaint is the alleged failure of the defendant city to provide its employee with a reasonably safe place to work. Specifically it is charged that defendant violated its duty in that it "failed to supply proper protective devices, failed to warn * * * plaintiff of the dangerous emanations from said X-ray apparatus and failed to apprise her of the fact that such safeguards as it did supply were substandard and ineffective." Defendant's answer denied the charges of negligence and set forth two separate defenses, (1) contributory negligence and (2) that plaintiff's exclusive remedy was under the Workmen's Compensation Act pertaining to public employees. R.S. 34:15-43 et seq.
The action was tried in the Essex County Court, Law Division, in November, 1949 (after the effective date of the Judicial Article of the Constitution of 1947), resulting in
a judgment of involuntary dismissal which, on appeal to the Superior Court, Appellate Division, was reversed (Kress v. City of Newark, 9 N.J. Super. 70 (1950)) and the cause remanded for a new trial. The case was retried in the Superior Court, Law Division, in June, 1951, resulting in a verdict of $90,000 for the plaintiff. From the judgment entered thereon defendant again appealed to the Appellate Division and, while pending there, we took jurisdiction of the appeal on our own motion.
The present appeal is directed to the trial court's denial of defendant's motion for an involuntary dismissal made after the presentation of all of the plaintiff's evidence, pursuant to Rule 3:41-2, and to the denial of defendant's motion for a new trial. Rules 3:59-1 and 2 and Rule 1:2-20.
The record discloses that Margaret Kress, a woman of limited education (grammar school only), was first employed at the city hospital in February, 1933, as a maid in one of the wards. Seven months later she was appointed and served for four years as monitor. Her duties were to escort female patients to and from the department and prepare them for X-ray. She took no part in the operation of the machines although she testified that she observed their operation and on occasions saw the technicians hold or help her in holding patients during the exposures. In 1937 plaintiff was put to work in the dark room, developing the X-ray films. She showed evidence of mechanical skill and in 1939 was assigned to the duty of taking X-ray pictures as a technician. Plaintiff testified that she was not given a physical or other preliminary examination as to her fitness for this new position; was employed as a technician without any instruction or warning as to safety precautions to be observed, and her only experience prior thereto with respect to the operation of the machines was what she had picked up by watching the other technicians operate them.
Plaintiff produced an X-ray or radiation physicist who had been employed by approximately 50 hospitals to check and advise with respect to the protection from radiation
afforded to personnel and the maintenance of correct procedures to accomplish that end. He testified (apparently without contradiction) to the standard requirements for the protection of X-ray technicians promulgated by the National Bureau of Standards (Handbook No. 20) and generally observed in hospitals. These specifications were that: (1) the head of the department is to be responsible for the safety of all employees therein; (2) each employee to be examined physically once a year and given an examination prior to employment, a general examination to determine fitness for this particular work; (3) each to have a blood count every two months, which shall be permanently recorded; (4) each technician to carry a dental X-ray film once every four months and if it shows an appreciable darkening the reason therefor should be investigated; (5) when an X-ray machine is operated the operator should be in an adjacent room or in a lead-shielded booth within the room, and (6) each employee at the time of employment is to be given a copy of these rules and regulations and required to sign a receipt therefor. Dr. Rubenfeld, a specialist in radiology, with wide experience in many hospitals, testified that the foregoing requirements are generally recognized as standard safety measures in hospital X-ray departments. Also, that it is the duty of the person in charge to instruct the employees that they are working in an atmosphere of potential danger, the details of which are outlined in the aforesaid Bureau of Standards' bulletin and they should be furnished with a copy thereof.
There was competent evidence from which it could have been found that there was no routine physical examination or blood count of employees at the Newark City Hospital and it appears that no records were kept concerning such matters during the period in question. It was suggested to the employees that they wear the dental films and report any darkening. No check was made to see that this was done and the ...