Elmore v. Missouri Pacific Railroad

301 S.W.2d 776, 1957 Mo. LEXIS 752
CourtSupreme Court of Missouri
DecidedApril 8, 1957
DocketNo. 45420
StatusPublished
Cited by1 cases

This text of 301 S.W.2d 776 (Elmore v. Missouri Pacific Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elmore v. Missouri Pacific Railroad, 301 S.W.2d 776, 1957 Mo. LEXIS 752 (Mo. 1957).

Opinion

DALTON, Judge.

Action for damages under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for personal injuries (dermatitis) alleged to have been sustained by plaintiff in the course of his employment by reason of contact with sodium bichromate, a rust inhibitor used by defendant in the cooling system of diesel engines. Verdict and judgment were for plaintiff for $25,000. Defendant has appealed and assigns error on the giving of plaintiff’s instructions Nos. 2 and 7 and on an alleged excessive verdict. There is no contention that a submissible [778]*778case was not made for the jury. We shall continue to refer to the parties as plaintiff and defendant.

Plaintiff’s evidence tended to show that he worked for defendant from 1924 until December 23, 1953, when he terminated his employment on account of dermatitis. •He was a machinist’s helper, employed in inspection and repair work, and first began work on diesel engines in August 1952. He was permanently transferred to that work about October 1, 1952. In previous work he had always been in contact with oils and greases, but they had never bothered him and he had never had anything wrong with his skin. When he was transferred to the . diesel shop, he began work on switch engines, filling radiators, putting on brake shoes and doing general machinist work, including the making of inspections. In this work he had his first contact with sodium bichromate and the crankcase lubricating oil used in the diesels. Most of his work was on switch engines, although he did some work on freight and passenger engines. For the most part, his work was in the open, outside the big shop building in the St. Louis yard.

It was part of his work to put sodium bichromate (also referred to as Dearborn 517, and as chromate or chromates) in the radiators and cooling system of the diesel switch engines. He would take a two pound bag of that material, empty it into a five gallon bucket of water, stir it up to dissolve the material, place the bucket on the running board of the engine and then get a ladder and carry the bucket up and unscrew the radiator cap and pour the mixture in the radiator of the engine. The bucket had •no cover, and the mixture would splash out in handling or spill when being poured into .the radiator and plaintiff would get the mixture on his body, hands, feet and legs. He also came in contact with chro-mate solutions in his work in other ways, as in the crankcase oils, on the floor of the •shop, or when he would lay his tool on the floor. When he was underneath the ramps in making inspections, or rolling wheels, the chromate solutions would drip on his head and neck. When he was changing lubricating oil filters or handling oil . covered parts, he would get solutions of the material on him and it would be all about him in his work. Frequently, he would have to be under engines making inspections shortly after they had been on the wash racks and water containing chromate solution would drip on him.

The solutions of sodium bichromate would get on the engines when radiators would boil over and the blowers would blow the solution back, or solutions would be spilled on the engine in filling the radiators or when the radiators would overflow from being filled too full, or when there would be leakage about the engine or pumps or pipes, or when cooling equipment would crack or break. If machinist work had to be done on the radiators or cooling systems of the engines, they often had to be drained and the solution of sodium bichromate would splash out on the floor of the shop, or fail to get in the little gravity channels for draining it off, or, if the radiators were drained in the open and the drainage hosé was not used, the cooling water, a yellowish green containing the chromate solution, would be drained on the ground. In case of leaks, the chromate solution would sometimes get into the crankcase lubricating oil and on the parts of the engines with which plaintiff came in contact. There would be yellow streaks on the roof, sides and running boards of the engines where solutions of chromates had been spilled and dried. The yellow streaks of chromate would sometimes extend down to the trucks of the engines and on the brake shoes. The engines were not washed often, and sometimes the men worked on them before they were washed, or just afterwards. According to plaintiff, the switch engines were washed every fifteen to thirty days, freight engines, as a rule, after they were ready to be dispatched, and passenger engines every time they came in. Sometimes after the engines were washed you could still see the streaks of chromates. You had [779]*779to come in contact with solutions of sodium bichromate in making inspections and doing machinist work on the engines. It would be “pretty hard” not to come in contact with the chromates in doing machinist work. Plaintiff said there was no way “to keep that stuff off of you all together.” One of plaintiff’s witnesses said “generally speaking I would say I don’t know how you could prevent it.” There was evidence that sodium bichromate and other such compounds were very definitely known as irritants; that they would cause skin irritation; that they were poisonous and, when applied to the skin, they would cause redness and breaking out. Other witnesses said that the best preventative of dermatitis from exposure to sodium bichromate was not cleanliness, but to “stay away from it”; that, if possible, industry should substitute some other chemical for sodium bichromate; and that “exposure to the solution should be kept at an absolute minimum.”

About the middle of October 1952, plaintiff’s hands started breaking out in a rash and itching so much that he “could hardly stand it.” Later, there was more breaking out on his hands and the irritation developed until there was bleeding, pus and running sores. If he was away from contact with the chromate solutions the sores would clear up, but there still would be continuous itching and, if he came back to his work, his skin would break out again. His condition continually got worse, until he had sores on his hands, arms, head and neck, his eyelids became swollen and, ultimately, it became necessary for him to terminate his employment with defendant in December 1953. It will be unnecessary to further review the evidence with reference to plaintiff’s physical condition, the dermatitis of which he suffers, or his sensitivity to various substances.

In view of the issues presented, it will not be necessary to review the evidence presented by plaintiff in support of his assignment that defendant negligently failed to furnish plaintiff with any creams to be used on the exposed portions of his body, until after his injuries were sustained, and negligently failed to furnish reasonably adequate' and available washing facilities, soaps and towels, so that plaintiff could remove the sodium bichromate solutions from his body after exposure thereto. This assignment was submitted by plaintiff’s instruction No.3. Nor will it be necessary to review plaintiffs evidence in support of his assignment of negligence that defendant negligently failed to warn the plaintiff that the substance (sodium bichromate) might have a harmful effect upon him, as submitted by plaintiff’s instruction No. 4. Nor need we review the evidence offered by defendant tending to support defendant’s instruction No. 5, which advised the jury that defendant railroad was not the insurer of the safety of its employees, but only had the duty to exercise reasonable care to provide its employees with a reasonably safe place in which to work.

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Bluebook (online)
301 S.W.2d 776, 1957 Mo. LEXIS 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmore-v-missouri-pacific-railroad-mo-1957.