Atlantic Coast Line Railroad v. Wheeler

132 S.E. 517, 147 Va. 1, 1926 Va. LEXIS 284

• Court: Supreme Court of Virginia
• Decided: March 18, 1926
• Status: Published

Opinions

West, J.,

delivered the opinion of the court.

J. L. Wheeler brought action against the Atlantic Coast Line Railroad Company for injury to his eyes, alleged to be due to lead poisoning caused by the negligence of the company, while in its employ as a painter. The jury returned a'verdict of 110,000 for the plaintiff, upon which the court entered the judgment now under review.

The parties will be referred to as plaintiff and defendant, with reference to their positions in the trial court.

The principal assignment of error is the action of the court in refusing to set aside the verdict of the jury, because contrary to the evidence and without evidence to support it, and enter a final judgment for the defendant.

The declaration alleges that the defendant was negligent in failing — To warn and instruct the plaintiff how to use and apply the paint safely; to furnish him with a safe and suitable place to work; to furnish him with safe and suitable appliances with which to work, and to inspect the appliances, place of work and conditions under which the work was being done.

The defendant contends that it has been guilty of no negligence, and that the condition of plaintiff’s eyes was not caused by lead poisoning.

Under the Code, section 6363, the verdict of the jury and judgment of the trial court cannot be set aside unless it appears from the evidence that they are plainly wrong or without evidence to support the verdict. In determining this question, where it “involves the credibility of witnesses whose testimony the jury might reasonably have believed, or the weight to be given to their testimony, or a question of a mere preponderance of the evidence,” the case must be considered as on a demurrer to the evidence by the plaintiff in error. N. & W. Ry. Co. v. Thayer, 137 Va. 294, 119 S. E. 107.

Considered as upon a demurrer to the evidence, the jury could well believe that the evidence proved the following facts, tending to establish the primary negligence of the defendant:

In July, 1922, J. L. Wheeler, the plaintiff, was employed by the defendant in its Pocahontas yards, at Petersburg, Virginia, as a carpenter. He was then in splendid health and his eyesight was unimpaired. The regular painters at the Clopton yards, near Richmond, were on a strike, and on August 11, 1922, Wheeler was transferred to the Clopton yards, and, against his wishes, put to work as a painter. He informed his boss that he was not a painter, knew nothing about paints, and that he could neither read nor write. He was first ordered to paint ears with a brush. Later, Wheeler and Martin, who were the only painters at work at the Clopton yards, were ordered to paint cars with a paint blow-gun. The paint was forced from the gun against the car in the form of a fine spray by air pressure. The paint-used in the blow-gun contained 38.68 per cent white lead and 33.16 per cent zinc oxide. The defendant knew it was poisonous when inhaled through the nostrils or mouth, or absorbed through the skin, and had prior to that time purchased face masks and goggles for the protection of the operators of the blow-gun. Wheeler had never seen a blow-gun or a face mask, and did not know there was danger of being poisoned from the spray. He never saw any person use the face mask or goggles while painting. The defendant failed to warn him of the danger or instruct him to use the face mask or goggles, which it had supplied with the spray machines and hung up in the paint house. The regular painters who worked at Clopton yards prior to the strike wore the face masks when there was much painting to be done, but this was unknown to the plaintiff. Wheeler and Martin were required many times prior to June, 1923, to paint with the blow-gun in the open air when a high wind was blowing. As a result, Wheeler frequently inhaled the spray and got his face, hands and clothes thickly covered with specks of paint. In June, 1923, the master mechanic painter from Rocky Mount, N. C., instructed them never to use the paint blow-gun when the wind was blowing.

When defendant’s primary negligence has been established, plaintiff’s right to recover does not depend upon defendant’s ability to foresee or anticipate that the particular injury might result from such negligence. Under such circumstances, the defendant is liable for the natural or probable consequences of its own act.

In N. & W. Ry. Co. v. Whitehurst, 125 Va. 263, 99 S. E. 569, Judge Burks, speaking for the court, said: “When once it has been determined that the act is wrongful or negligent, the guilty party is liable for all the consequences which naturally flow therefrom, whether they were reasonably to have been anticipated or not. * * The precise injury need not have been anticipated. It is enough if the act is such that the party ought to have anticipated that it was liable to result in injury to others. City Gas Co. v. Webb, 117 Va. 269, 84 S. E. 645; Pulaski Gaslight Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; Cooley on Torts (student’s ed.), page 33; Hill v. Winsor, 118 Mass. 251; 25 Harvard Law Review, 245-6; 1 Shear. & Red. Neg. (5th ed.), section 28, and cases cited.”

It was said by this court in City Gas Co. v. Webb, 117 Va. 272, 84 S. E. 646: “If the act of omission is of itself negligent and likely to result in injury to others, then the person guilty thereof, is liable for the natural consequences which occur, whether he might have foreseen it or not. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for an injury proximately re-suiting therefrom, although he might not have foreseen the particular injury which did happen.”

The court, speaking through Keith, P., in Pocahontas Collieries Co. v. Williams, 105 Va. 708, 54 S. E. 868, says: “It is the duty of the master to inform an inexperienced servant of danger ordinarily incident to the service, and if he fails to do so and the servant has no opportunity to learn, then he will not be held to assume risks not obvious to one of his age, experience or judgment.

“The question whether the servant should have been warned is always for the jury upon the evidence.”

In Wagner v. Jayne Chemical Co., 23 A. 772, 147 Pa. St. 475, 30 Am. St. Rep. 745, the court said: “An employer is bound to exercise reasonable precaution against injury to his employees while they are in his service and obeying his orders. Not only must he provide suitable implements and means with which to carry on the business which he sets them to do, but he must warn them of all the dangers to which they will be exposed in the course of their employment, except those which the employee may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be .open and obvious to a person of his experience and understanding, and except, also, such as the employer cannot be deemed to have foreseen. And the employer will be presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged. Authorities upon these points may be found in great abundance in the notes to sections 185-203 of Shearman & Redfield on Negligence.”

In this case, the plaintiff inhaled poisonous fumes and was injured thereby. He was not warned of the danger by his employer, and there was testimony that he had no previous knowledge of suck danger. It was held that the defendant’s.negligence and the plaintiff’s contributory negligence were questions for the jury and the judgment for the plaintiff was affirmed.

In B. & O. Ry. Co. v. Branson, 128 Md. 678, 98 Atl. 225, plaintiff was employed to paint freight cars and locomotives with a paint blow-gun, which covered the painter with a fine mist of paint. The plaintiff did not. know of the poisonous character of the paint used. Defendant knew of the danger but failed to provide the plaintiff with a nose guard. Plaintiff’s health was injured by the inhaling of paint, and he sued, alleging negligence in defendant’s failure to provide safe and suitable appliances with which to perform the work. The court held that the question of defendant’s negligence and the extent of plaintiff’s injury were questions-for the jury, and affirmed the judgment in favor of the. plaintiff.

The law as to proximate cause is laid down in 29 Cye. page 492, as follows: “To constitute proximate cause, creating liability for negligence, the injury must have been the natural and probable consequence, of the negligent act.”

It is not necessary that the injury should be the-inevitable result of the negligence, but only the probable result. In other words, “if the - consequences-follow in unbroken sequence from the wrong to the-injury, without any intervening efficient cause, it is-sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence.” Pullman Palace Car Co. v. Loack, 32 N. E. 290, 143 Ill. 260, 18 L. R. A. 220, and cases cited.

It is obvious that there was ample evidence-introduced in the instant case, tending to prove a different state of faqts, ■which., if believed by the jury, would have justified a different conclusion upon the question of the defendant’s primary negligence. But this was a question for the jury, and their finding against the defendant is conclusive here.

Was defendant’s negligence the proximate cause of the plaintiff’s blindness?

Plaintiff’s witness, Dr. J. T. Watkins, a duly licensed and experienced optometrist, examined the plaintiff’s eyes with an opthalmoscope in March, April and May, 1923, and found him suffering with optic neuritis, which was producing atrophy of the optic nerve and causing a loss of vision. He says optic neuritis is an inflammation of the optic nerve which may be produced by many causes, including lead poisoning, and that lead poisoning caused plaintiff to have optic neuritis, which atrophied the optic nerve, and in May, 1923, was causing complete blindness; and that in December, 1923, he had no vision in his right, eye. He agrees with the other doctors who examined Wheeler, that in 1924 plaintiff was suffering from simple glaucoma. He also testified that lead poison may result from paint which is taken into the system through the mouth or nose, or by absorption through the skin.

In July, 1923, Wheeler went to defendant’s hospital at Rocky Mount, N. C., to be treated for severe pains in his abdomen. Dr. Killinger, the physician in charge, examined his blood and diagnosed his trouble as lead poisoning and treated him for it.

It was not discovered until November 16, 1923, when he was examined by Dr. M. C. Edmunds, physician and eye specialist, who testified for the plaintiff, that Wheeler was suffering from simple glaucoma, or hardening of the eyeball. Dr. Edmunds says the ophthalmoscope showed he had optic atrophy, and that both nerves were absolutely white; that the tonometer showed that his eye was a little bit hard. He diagnosed the trouble as optic atrophy, probably secondary to chronic glaucoma. Doctor Edmunds says: “No one knows the cause of glaucoma;” that it is possible for Wheeler to have had optic neuritis which cannot now be detected on account of the presence of glaucoma, which is characterized by tension within the-eyeball; that the fact that Wheeler was suffering with glaucoma does not mean that his trouble was not caused by lead poison; that the two troubles do not-contradict each other; that lead poisoning results in blindness from its influence on the optic nerve by producing optic neuritis, and sometimes optic atrophy, which often follows lead poisoning.

In May, 1924, Dr. J. A. White, eye specialist, witness-for the defendant, examined the eyes of the plaintiff and found he had simple glaucoma. Dr. White says lead poisoning produces blindness by inflammation of the nerves, while in glaucoma there is no inflammation of the nerve, blindness being produced by pressure-from the inside of the eye on the end of the nerve. He does not think lead poison can produce glaucoma, and states that the profession have never yet agreed on the cause of glaucoma. In his opinion, glaucoma is eausefd by a “disturbance of the normal relation between the excretions in the eye and the excretion of them from the eye.” He admits that it is possible for Wheeler to have had optic neuritis in March, 1923,. which could not, on account of the changed condition of the eyes, be detected at the time of his examination in May, 1924. He also says it is possible for a person to have lead poison and glaucoma at the same time.

The defendant, knowing that the use of the paint-blow-gun when a strong wind was blowing would probably work injury to the operator, purchased face masks for their protection, but negligently failed to warn or instruct the plaintiff of such danger, which failure caused the plaintiff to contract lead poison. Loss of eyesight was the natural consequence of having his optic nerve atrophied by the action of the lead poison. The negligence of the defendant being the cause of the lead poisoning, which caused the injury, was the causa causans, or proximate cause, of the injury.

The fact that lead poison does not always injure one’s eyesight is of no moment, since the evidence is that it did produce atrophy of the nerves and loss of vision in the instant case. As already appears, it is immaterial that the defendant could not anticipate that this particular injury might befall the plaintiff as a result of its negligence. The record discloses no independent, intervening cause between the negligence of the defendant and the injury to the plaintiff.

The instant ease is distinguishable from Allison v. City of Fredericksburg, 112 Va. 243, 48 L. R. A. (N. S.) 93, and kindred cases. In that ease, the plaintiff, an infant ten or twelve years of age, was injured by falling through a hole in one of the planks of a small bridge which the city maintained across one of its sidewalks. The actual injury at the time of the accident was slight, only resulting in a slight bruise on the leg near the knee. Shortly thereafter, however, a sarcoma, or malignant cancerous growth on the bone, occurred at or about the point of injury, which two doctors stated, in their opinion, was the result of the original injury to the knee. ' The plaintiff’s leg was amputated above the knee, the operation being necessary to save her life. The negligence of the city was conceded, and it was conceded that the sarcoma resulted from the original injury to the knee.. The trial court and this court, in affirming the decision of the trial court, held (page 248 [71 S. E. 527]) that it was “clear that the injury sustained by her in stepping into the hole in the bridge was not the proximate cause of the loss of the plaintiff’s leg. The s'arcoma was not the natural and probable consequence of the plaintiff’s foot going through the hole in the bridge, and could not have been foreseen in the light of the circumstances attending the alleged negligence of the city.” It was further held in that case that the question of proximate cause, under the circumstances there presented, was one of law to be determined by the court, and not one of fact to be submitted to the jury. The plaintiff was permitted to recover for the actual injury to her knee occasioned by her fall, but was debarred from recovery for the sarcoma and the dire results which followed. The testimony of all the physicians, however, was to the effect that it was impossible for anyone to anticipate such a result from such an accident, one saying that no human power could have foreseen such a result from such an accident; that one hundred children could have fallen through and had similar injury, and a cancer not occur in one of the hundred.

In the instant case, Dr. Edmunds testified that optic neuritis frequently follows lead poisoning.

Therefore, under the law, as stated, and the facts, the question of proximate cause was one for the jury, and they having found that the alleged wrongful act was the proximate cause of plaintiff’s loss of sight, we cannot say such finding was without evidence to support it.

The plaintiff’s contributory negligence was also for the jury’s determination, and their finding concludes that question in favor of the plaintiff.

In Judy v. Doyle, 130 Va. 392, 405-6, 108 S. E. 10, the court says: “It is the province of the court to determine, in the first instance, whether or not the facts offered in evidence, tending to prove an injury to a plaintiff, are too remote from the defendant’s act of negligence to constitute an element of the plaintiff’s recovery. But where the court finds itself unable to make this ascertainment of remoteness, the question of what is the proximate cause of an injury is ordinarily a question for the jury.”

In Railway Company v. Kellogg, 94 U. S. 474 (24 L. Ed. 256), the court said: “The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it.”

The questions of primary negligence and proximate cause having been decided by the jury in favor of the plaintiff, we cannot upon the record say the verdict is contrary to the evidence or without evidence to support it.

The second assignment of error relates to the action of the court in giving and refusing instructions.

The defendant asked for twelve instructions, nine of which were given. The court also gave two other instructions, one on its own motion and the other at the request of the plaintiff.

We have carefully examined all the instructions granted and refused. The instructions given were exceedingly favorable to the defendant and so fully covered the theory of the case that it was not reversible error for the court to refuse the three which were not given.

The third assignment of error is without merit, since we would not be justified in reversing the judgment because of tbe court’s refusal to admit certain testimony referred to in tbis assignment.

Had the verdict been for tbe defendant, we could not have disturbed it, and we find nothing in tbe record to warrant us in reversing tbe judgment in favor of tbe plaintiff.