McDERMOTT, Circuit Judge.
On January 2,1920, W. J. Grammer went to work for appellee as a tank cleaner, in which, work he became acquainted in a general -way, with the work of clemiing high pressure stills. On April 4,1921, he was promoted to still cleaner at his own request, a job with shorter hours and better pay. He -worked steadily in that capacity until February 27, 1932. During that eleven years he was off a week with a cold, a month with stomach trouble, and a few days with an abscessed tooth. He became ill with some form of lung trouble and died July 7, 1932. His doctor diagnosed his condition as pneumoconiosis, a disease characterized by the formation of a deposit in the lungs, the growth of fibrous tissue, and caused by the inhalation of foreign matter. His doctor testified that by a process of elimination, lie deduced, that the death resulted from the work of cleaning stills for so many years. The doctor said:
“I found nothing in Ms history to explain his condition outside of the conditions under which lie was employed by the Mid-Continent Petroleum Corporation.”
This, action was brought by Ms administratrix for Ms wrongful death, on the conventional grounds that appellee failed to provide Grammer with a reasonably safe place in which to work, reasonably safe appliances with which to work, f ailnre to warn, to instruct, to establish rules, and to insjoeet. The trial court directed a verdict at the close of plaintiffs case and the principal error assigned is leveled at that ¿uling.
The ease was tried below and presented here in a very different way from the ordinary personal injury ease. Appellant’s counsel tried the ease on the novel but commendable theory that the jury should have all the facts, and that it made no difference in the end who called the witnesses. Working conditions were thorougMy explored from witnesses friendly and unfriendly. The cause has been briefed and argued here on two occasions, each time with vigor but fairness on both sides. Upon conference, following the first argument and a study of the record and briefs, three different ideas were held and stoutly maintained by the sitting J udges. The cause was reargued, and many points clarified by that rcargument. The fairness of counsel enables us to pass lightly over many points without extended discussion, and get to the narrow but troublesome question upon which the cause must turn.
In refining crude oil, the crude is first run through “crude” stills, the residuum from which is gas oil. The gas oil is further refined in the high-pressure stills here involved. These stills are from 8 to 1.0 feet in diameter and 30 to 40 feet in length, with three manholes of from, 24 to 30 inches in diameter, one on the front and two on the top. The stills are designed to operate on a cycle of 48 lioui s, that is, it should take 48 hours to complete a run. If not completed in that time, a still must lay over until the next cycle starts. This sometimes happened, but was avoided where possible.
The cycle starts when gas oil is placed in the still and the fires ai-e lighted. The stills operate under a temperature of 690-740° F. and a pressure of 80 pounds. The fires are cut when a required percentage of distillation has been reached. The still operates under its accumulated heat and pressure for an hour or so. The contents of the still are pumped out, a task taking from 30 to 45 minutes. Live steam under pressure is then forced through the still for an hour to an hour and a half, to clean the still as dry as possible. The manhole plates aro then removed, and the still is steamed with a blower ventilator that displaces, or is supposed to, all the air and gases in the still in from 1 to 3 minutes; this forced ventilation is maintained as long as the still foreman thinks necessary, but generally from an hour to an hour and a half. Then air is forced through the stills until they are cooled to the point where the still cleaners can enter, the cleaners themselves, or a straw boss among them, determining when that point is reached. Atmospheric conditions play their part in this, but in normal course, the blowers go on at five o’clock and the cleaners’ tour of duty starts at seven o’clock. For a time, water was used in cooling the stills, but that was stopped because of the hazard to workers which came about bf the crystallization of hot metal when too suddenly cooled.
The fires were generally cut at ten o’clock at night, which, allowed nine hours for the described operations before the cleaners came to work. The rule was that twelve o’clock was the dead line for cutting the fires, and if a still was carried beyond that time, the still was not cleaned but carried over to another cyele. There is evidence that this mle was often disregarded, and stills coming off at three or four o’clock in the morning were often cleaned.
[40]*40These were standard practices for distillation of sweet or low-sulphur content crudes, such as were refined by appellee. They are the “Safe Practices in Cleaning Petroleum. Stills” approved by the National Safety Council, and in use for many years at appellee’s large refineries until the process was displaced in 1931 or 1932. Until the present suit was filed, no occupational disease had been known to result.
The still cleaners camei on duty at seven A. M., and were paid for eight hours, but their day was over when the stills were cleaned, generally by ten-thirty or eleven o’clock. There were 100' stills to be cleaned, and five gangs of eight men each to clean them. A still could be cleaned in 20' to 30 minutes. A slight computation sheds considerable light on the point, much argued, about occasionally cleaning a still that came off late — not unplated until seven o’clock as one man testified. It is argued that this was done, in violation of the rules, to prevent the economic loss of laying the still over. Let us see if there is another reason. If the fires were cut at four A. M., the latest hour mentioned, the cooling process would be complete in 7 hours and 15 minutes, taking the maximum time mentioned for each step. It would be ready, then, at 11:15 for the cleaners. The latest hour for unplating mentioned in the evidence is 7 o’clock. It takes four hours, at the maximum times mentioned, to cool after unplating, or 31 o’clock. The cleaners were paid to work until 3 o’clock in the afternoon if necessary. They could have cleaned the stills that came off late between 11:15 and 3 o’clock. But if they cleaned them before they were cool enough, they could go home. There is evidence that the gang foreman’s task was to keep, them out of stills that were too hot; and if stills were occasionally entered that were too hot, it was done so the cleaners eould finish and get away. The stills were not entered until the boss of the gang put his head in the manhole to test the heat and sniff for gas.
The work of the cleaners was to rake down coke, burning or smoldering, that escaped the mechanical rake, and clung to the top or sides of the still, and sweep'it out. The breaking up of these coke deposits gave off dust and a trace of gases. The cleaners were clothed in heavy woolen suits, wooden shoes, and were furnished with a respirator. The respirator had a fine wire mesh, designed to. catch all but the finest dust, a sponge which the workmen were instructed to keep wet, and an exhaust valve.
1. Cause of Death. Among other reasons for directing a verdict, the trial court was of the opinion that there was no substantial proof that death resulted from this work. The proof is most unsatisfactory. Conceding that death resulted from pneumoconiosis, the doctor’s opinion that it came from his work was formed, as he says, because he could find no other reason for it. However, pneumoconiosis eoncededly results from deposits of foreign material, and Grammer did work in a dust-laden atmosphere. That the doctors never knew of another still worker being so affected, and that the medical books tell of no other, goes to the weight of the evidence. Since this case was filed, many other still cleaners find themselves similarly afflicted and have testified in this case. The answers to the hypothetical questions are in stereotyped form. We think it sufficient to go to the jury. Whether a trial court would be justified in setting aside a verdict on this ground, is not before us. Prinsen v. Travelers’ Protective Ass’n (C. C. A. 10) 65 F. (2d) 841, reversed on other grounds, 291 U. S. 576, 54 S. Ct. 502, 78 L. Ed. 999.
2. The Duly of an Employer. An employer is not an insurer; his duty to furnish safe working conditions is not an absolute one, although, it is nondelegable; his duty is to- use reasonable care to that end. Ordinarily, fulfillment of that duty is established when it appears that the employer conformed to' the common usages of the industry, for one cannot ordinarily be said to be negligent if he does that which ordinary men, like situated, do. He is not bound to discard standard appliances whenever a better one is put on the market. Baltimore & O. S. W. R. Co. v. Carroll, 280‘ U. S. 491, 50 S. Ct. 183, 74 L. Ed. 566; Yazoo & M. V. R. R. Co. v. Mullins, 249 U. S. 531, 39 S. Ct. 368, 63 L. Ed. 754; Chicago & Northwestern Ry. v. Bower, 241 U. S. 470; 473, 36 S. Ct.. 624, 60 L. Ed. 1107; Seaboard Air Line v. Horton, 233 U. S. 492) 501, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915 C, 1, Ann. Cas. 1915B, 475; Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 664, 21 S. Ct. 275, 45 L. Ed. 361; Washington, etc., Railroad Co. v. McDade, 135 U. S. 554, 10 S. Ct. 1044, 34 L. Ed. 235; Kyner v. Portland Gold Mining Co. (C. C. A. 8) 184 P. 43; Haines v. Spencer (C. C. A. 3) 167 P. 266. Judge Walter H. Sanborn, in H. D. Williams Cooperage Co. v. Headrick (C. C. A. 8) 159 P. 680, 682, stated the rule which has been applied in the states of this circuit for many years:
“The master is not required to furnish the best, the safest, or the newest appliances or methods of operation, nor to adopt extraordi[41]*41nary or unusual'safeguards against risks and dangers. The limit of his duty here is to exercise ordinary care to supply reasonably safe places, appliances, and methods. The test of his discharge, of this duty is the exercise of ordinary care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances.”
There are cases where accepted industrial usage does not meet the standard of reasonable care. Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 23 S. Ct. 622, 47 L. Ed. 905; The T. J. Hooper (C. C. A. 2) 60 F. (2d) 737; Elkton Auto Sales Corp. v. State of Maryland (C. C. A. 4) 53 F.(2d) 8; James Baird Co., v. Boyd (C. C. A. 4) 41 F. (2d.) 578. The test is reasonable care, not customary usage. The appellee met this test, for there is no- evidence of better equipment or safer practices. Appellee conformed to the standards of the industry.
Appellant invokes another rule of law, supported by respectable authority, that where employees work with known poisons or in the presence of inherently dangerous instrumentalities, the employer must search for lurking dangers, and is held to know whatever science might discover. In Green v. Standard Wholesale Phosphate & Acid Works (D. C. Md.) 29 F.(2d) 746, 748, this rule is stated:
“Proof of actual knowledge is not required where the article is so made up as to-be inherently harmful, and he cannot excuse himself upon the ground that he did not know its dangerous qualities.”
To- the same effect see, Thompson v. United Laboratories Co., 221 Mass. 276, 108 N. E. 1042; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N. W. 724, 27 L. R. A. (N. S.) 953,136 Am. St. Rep. 454, 19 Ann. Cas. 1152; Chicago, R. I. & P. Ry. Co. v. Cheek, 105 Okl. 91, 231P. 1078; Wagner v. H. W. Jayne Chemical Co., 147 Pa. 475, 23 A. 772, 30 Am. St. Rep. 745; Fritz v. Elk Tanning Co., 258 Pa. 180,101 A. 958; Kane v. Federal Match Corp. (D. C. Pa.) 5 F. Supp. 507.1
The principal question in the ease, therefore, is this: Was appellee dealing with substances inherently dangerous within the doctrine of these cases ? To bring this case within that doctrine, it is not enough- that it was known 4hat traces of noxious gases were present. Many poisons are comparatively harmless when the dosage is dilated. Nicotine, concentrated, is a deadly poison. But an employee, permitted to work whore men smoke, could not invoke the doctrine of inherently dangerous sub-stances. The question here is; Did appellee have any reason to suspect the presence of these gases in dangerous quantities ?
3. Knotoledge of Appellee. It is not contended that ap-pellee in fact knew that pneumoconiosis or any other occupational disease wo-uld follow from its practices. In fact, no one knew it, for the doctor explored medical hooks in vain to find another such his[42]*42fory. That the still cleaners worked steadily for years without illness2 strongly evidences that appellee had no knowledge nor reason to suspect that occupational disease might follow long years of service. The Vice-President .in charge of refining operations for appellee testified, -without contradiction, that in 26 years refining experience, he had never heard of another such ease. Appellant contends that since pneumoconiosis was a disease long known to the profession, appellee could have discovered this peril, then -unknown to the industry or the medical profession, by employing chemists to ascertain qualitatively and quantitatively, the constituents of the dust and gases in the stills, and then by researches in the medical profession, could have discovered that if the employment continued for a certain length of time, disease might follow. Whether appellee is held to tliat unusual standard of care can be determined by an inquiry, presently to he made, of its knowledge of carbon monoxide and hydrogen sulphide.
4. Appliances. The workmen were equipped with respirators heretofore described, instructed to wear them and keep- the sponges wet, and water was provided outside each still for that purpose. The wire mesh would elog. up, and the workmen would, at times, throw them away rather than take a moment to clean them. Sometimes workmen replaced the sponges and the rubber head-tape furnished with better ones. New respirators were available when the old ones were worn. There is no proof nor suggestion that better respirators, as distinguishable from gas masks, .were on the market, or that there was any absence of care in this regard.
5. Heat.3 The work was carried on under most trying conditions. The temperatures in the stills ran from 150° to 250° F. The heat often produced nausea. But all the witnesses agree, including those who. have pending suits, that no cleaner was ever sent into a still when he thought it was too hot, although it was necessary at times to forbid a gang to enter when they wished to hurry through. A cleaner came out as often, and stayed out as long, as he wished. The risk of the heat was assumed in law and in fact, for Grammer knew the conditions when he applied for the job. There were a few complaints of injuries to health generally on account of the nature of the work, and men were told if they did not want to Work under such trying conditions, they might quit. But no one did more than generally complain; there was no suggestion of any lung disease, and the length of time men so employed held their jobs would have belied any such suggestion.
Furthermore the heat was not a contributing factor to the thickening of the fibers of the lung. Exposure to heat may well have lowered Grammar's resistance to disease] just as all hard work takes its toll. The surgeon at the operating table and the nurse at his side, the captain on the bridge of a liner and the stoker in the hold, the lawyer at the trial table and the judge on the bench, all give something of themselves to their tasks. But the lowering of resistance that comes with all bal’d work, is not actionable.
6. Dust. If Grammer died of pneumoconiosis, and if his occupation had anything to. do with it, it was because of the dust in which he worked. He knew the dust was present when he took the» job and when he kept it year after year. He knew it was somewhat harmful to the lungs, for he was furnished with a respirator and told to wear it, and that its purpose was to keep the dust out of his mouth, nose, and lungs. The dust irritated the throat and coughing followed. He assumed the ordinary, known risks attendant upon inhaling dnst-laden air. Butler v. Frazee, 211 U. S. 450, 29 S. Ct. 136, 53 L. Ed. 281. No more effective warning of danger could be given than by furnishing respirators and requiring them to be worn.
Grammer did not however assume the risk of any concealed dangers lurking in the dust. Appellee eoneededly knew of no lurking danger. Should it have discovered the danger? There’s the nub of this ease. If coke dust, or the gases hereafter discussed, alone or in combination, are inherently dangerous substances, as is arsenic or nitric acid, the eases above cited are to the effeet that appellee should have exhausted scientific knowledge in an endeavor to run the danger to its lair and protect against it. But is carbon dust an inherently dangerous substance ? ■ Appellant’s own scientist said it was less harmful than ordinary house dust. The record discloses what we all know, that men live and die amid the dust and soot of the industrial districts of the cities of Pennsylvania and Ohio; and that coal miners and stone-workers per[43]*43form their tasks in clouds ox dust. Certainly ordinary house dust cannot, in law or fact, be classed with poisons or explosives which must be handled with infinite care.
7. Gases. Appellant’s contention is bottomed on the presence of two gases in the stills, carbon monoxide, and hydrogen sulphide.
Carbon monoxide is a by-product of combustion, and exists wherever there is a fire. In minute quantities, as in a living room with a fireplace or a kitchen with a stove, it is comparatively harmless. In large quantities, it deprives the hemoglobin of the blood of its affinity for oxygen, and death is immediate and painless. Medical authorities, relied upon by appellant, say that it has no irritating effect on the lung's, and that there is a dispute among the authorities as to whether long exposure to minute quantities produces any chronic result. We need not be scientists to know that the quantities found in the ordinary home have no substantial deleterious effect. There is not a word in this reeord as to the quantity of such gas left in these open stills after the hours of forced ventilation; there is no suggestion of any acute attack of poisoning during the many years covered by the testimony. As far as this record goes, there was no more present than in the ordinary home.
Hydrogen sulphide results from the breakdown of sulphur. Appellant’s scientist testified that hydrogen sulphide is dangerous or toxic at from 100 to 150 parts in a million, but continued exposure to one-third of that amount would be harmful. Its deleterious action, like carbon monoxide, is very rapid and usually leaves no permanent effect on those who survive. Where death is not instantaneous, the symptoms are irritation of the eyes, catarrh of the nose and throat, palpitation of the heart, headache and cold sweats. Bronchitis and pains in the chest are frequent with a destruction of the lining of the lungs.
There is evidence that there was a trace of hydrogen sulphide in the stills; the men sometimes smelled it, and fillings in their teeth tasted like copper. But there is not a scintilla of evidence that the amount of hydrogen sulphide left in the stills after the forced ventilation even approached the danger mark. All the evidence there is, is to the contrary. In the first place, there is not an instance, in these years, of any acute poisoning from hydrogen sulphide, or even of the symptoms that come with an exposure to it. The chemist testified that he himself had been exposed to petroleum vapors for years and years without serious effect. The safety engineer, employed by appellee, inspected these stills for safety throughout the years. During the early years, he inspected them four or five times a week. lie made some tests with the Burrell gas indicating machine. Such inspection disclosed no dangerous conditions. The chemist of appellee testified that he did not see how any hydrogen sulphide could be in the stills when the cleaning commenced.
There is another evidentiary fact, adduced by appellant, that powerfully negatives the existence of these gases in any dangerous quantities. The United States Government, through its Bureau of Mines, made an elaborate study of the effects of hydrogen sulphide, the only toxic gas found in the refining process. That report of 100 pages is Bulletin 331 of the Department of Interior, published in 1935. The conclusion is that in the refining of high-sulphur erudes, such as is found in Mexico, danger existed which, required gas masks and other protective measures; but that in refining sweet crudes of low-sulphur content, such as we have here, such measures were not required. In part, the Bulletin states:
“Petroleum gases and vapors have not, however, been considered as actively poisonous, in the sense that hydrocyanic (prussic) acid and phosgene are poisonous; men have been exposed to them repeatedly, and for long periods, without any marked ill effects.”
“In the Mid-Continent fields occasional erudes contain sulphur, but in general the output of high-sulphur crude is small and unimportant; the two main exceptions are the Ilealdton field in Oklahoma and the El Dorado field in Arkansas.”
Confining its attention, therefore, to highsulphur crude refineries, the government found no hydrogen sulphide even in them in the stills after foreed ventilation for two hours. The report says:
“Hydrogen sulphide was shown to be absent from the coke stills during- ventilation and cooling. Conjunctivitis (inflammation of the eyes) in still cleaners may be caused by high temperatures or by sweat getting into the eyes,”
There is more of the same tenor; a reading of the entire document leaves no doubt that these investigators discovered no toxicity in the gases arising from the refining of sweet crude, and that the special precautions required in Mexico were not required in the Mid-Continenrt field,
[44]*44The argument made by appellant that since refining of Mexican crudes resulted in á toxic quantity of hydrogen sulphide, refining of sweet crudes has the same result in lesser degree, is a non sequitur. Carbon monoxide in a closed garage is a deadly poison; carbon monoxide from an open fire in a living room is harmless. A drop of nicotine will kill a eat, but men smoke all their lives.
Appellant then argues that several things, each harmless by itself, may form a harmful Combination. This is true, but it does not follow that all such combinations are harmful. There are twó answers to this argument. The proof that hydrogen sulphide had anything to- do with the deposit of dust on the fibers of the lungs, is that “gases played a part'in that development” and “the gas along with "this fine dust would act' as an additional irritant. It aggravates the condition and makes' it work faster.” But on éross-exaúiinatíon', one expert said, “Hydrogen' sulphide may or may hot be injurious to tissue,” and another,
» “Carbon dust would play a part in breaking, down the lung tissues and causing pneumoconiosis. There is a great deal of. difference" of opinion about that, and contra-views qan be quoted from good authorities about the effect of carbon dust. I believe T can get |tn authority. I cannot just quote an authority oh it, but I believe I can find'sueh a statement.” ....
But the textbooks on the subject, offered py appellant, are much more convincing than the contradictory statements of experts ern.: ployed for the trial. The textbooks say that it is an open question whether carbon monoxide produces any chronic effects, and that “the literature, does not yield much positive data” a? to chronic effects from hydrogen sulphide, pn top of that, those authorities who believe there is a sub-acute reaction to- these gaseg, &o hot mention a deposit on the lungs, Or an Aggravation thereof, as one of the' pfter-effects. There is no proof that- in thése' years of operations, any employee developed any Symptom which the authorities ascribe to a sub-acute attack of such poisoning.
Crammer’s trouble was not a disease of the -eyes or edema-; it was a deposit' on the lungs. Any finding by a jury that hydrogen shlphide or eafbon.morioxide had anything to do .with this deposit on the lungs would rest on speculation. Mr. Justice Stone, in Atchison, T. & S. F. Ry. Co..v. Toops; 281 U. S. 351, 354, 50 S. Ct. 281, 282, 74 L. Ed. 896, said:
“But proof of negligence- aloné does hot entitle the plaintiff to recover under the Federal Employers’ Liability Act. The negligence complained of must he the cause of the injury. The jury may not be permitted to-speculate as to its cause, and the case must be withdrawn from its consideration, unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer.”
Judge Kenyon, in Blair v. United States (C. C. A. 8) 47 F.(2d) 109, 111, said that “For a court to find under this evidence that * * * appellant was totally and permanently disabled would be a mere guess, unsupported by any substantial evidence.”
This court has steadfastly adhered to this rule. United States v. Derrick (C. C. A. 10) 70 F.(2d) 162; Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170; Order of United Commercial Travelers v. Greer (C. C. A. 10) 43 F. (2d) 49-9.
But even if appellant crosses this bridge, another one is just beyond. To bring herself within the rule of inherently dangerous substances, upon which her ease is bottomed, there must he proof not only that the combination of harmless substances was harmful, -but that appellee should have known the combination- was' fraught with danger. There is no such proof. Appellee knew that carbon monojxide and'hydrogen'sulphide, in concentrated form, were deadly,'just as nicotine is a deadly poison.' In minute quantities, the Carbon monoxide from a wood fire is no more harmful than, smoke from a cigar; and a minute amount' of: hydrogen sulphide, although offensive, to the olfactory nerve, is not rated as a deadly -poison.
the Third ■ Circuit Court of Appeals reached this conclusion in a ease very similar on its facts. Pennsylvania Pulverizing Co. v. Butler, 61 F.(2d) 311. In that case an employee contracted the occupational disease 'of silicosis; fcrising from the breathing in of small dust p-aitieles of silica, and sued his employer. . The trial court -submitted the case to the jury. The Court of Appeals reversed. ■The, court held, that the furnishing of a respirator was adequate .warning that there was some danger pf injury to the lungs from working in tkp dust-laden atmosphere, and that since both-master and servant knew that some, danger existed, the employee assumed the risk of. any result which followed, including the occupational, slow developing disease of silicosis. ■ . .
■ ■ Appellant’s -case will not 'stand the test of dissection. ■ Neither -'does it stand the test [45]*45of a survey from a) distance. Appellee was engaged in the refining of oil, a business attendant with some danger as are nearly all constructive undertakings. Its equipment was standard and not defective. It followed the practices approved expressly by the National Safety Council and impliedly by the Bureau of Mines. It employed a safety director, a chemist, and a doctor. It did all that was then known to minimize the risk to its employees. It operated year after year with, no occupational disease resulting from the work. It had no reason to suspect any such.
Occupational diseases are a part of the hazards of industry. The loss therefrom, like the loss from accidental injury, ought to be borne by the industry in the first instance, and not by the employee. But it is the function of the legislative arm, and not the judicial, to extend the workmen’s compensation laws to cover them. Tested by the principle of fault which underlies recovery for injuries at common law, we do not believe the appellant has established her case.
8. Other Error Assigned. The court excluded a pamphlet published by the National Safety Council. Those parts having to do with the present case were admissible, but the whole was offered, and the extraneous parts might have been misused by the jury. We have given appellant the benefit of the materia] portions thereof in passing upon the sufficiency of her case.
The jirdgment is affirmed.