Anderson v. Southern Pacific Co.

This is an appeal by plaintiff from an adverse judgment entered upon a jury verdict for defendant in a personal injury action under the Federal Employers’ Liability Act. (45 U.S.C.A., § 51 et seq.) By his complaint plaintiff sought damages for a progressive disabling disease of the lungs and bronchi, known as pulmonary emphysema,

Herein appellant claims error in instructions given by the court concerning the defense based on the statute of limitations, in the giving of various other instructions, which we will discuss later, and in the exclusion of evidence.

On the subject of limitation of action, the court modified, and gave as so modified, an instruction requested by plaintiff. It read as follows: “In an action where the plaintiff claims, as a proximate result of defendant’s negligence, to be suffering from an occupational disease which had a gradual onset over a long period of time as a proximate result of continued exposure to deleterious materials in his employment, a different rule applies in determining the time when the plaintiff sustained injury, if any, so as to commence the running of the statute of limitations, than applies in the usual civil action for injury to one’s person.

“In such usual action for injury to one’s person there is

“But in an action such as we are now trying, where the plaintiff claims injury as a proximate result of continued exposure over a period of time rather than at a particular point of time, the cause of action does not accrue and the statute of limitations thereon does not commence to run until such time as the accumulated effects of the deleterious materials have manifested themselves, that is to say, until such time as plaintiff knows, or in the exercise of ordinary care should have known that he has suffered an appreciable occupational injury. ’ ’

As requested by plaintiff the latter part of this instruction read: “The Statute of Limitations thereon does not commence to run until such time as the accumulated effects of the deleterious materials have disabled plaintiff from doing his work, or until such time as plaintiff knows, or in the exercise of ordinary care should have known, that he has contracted a disease proximately caused by exposure by such deleterious materials which is reasonably certain to disable him from doing his work in the future.” (Italics supplied.) As modified by the court the instruction eliminated disablement as a specific point of time which the jury could find marked the running of the statute and substituted the more general term “manifested themselves,” then defined manifestation as being a condition known to plaintiff or as to which plaintiff was chargeable with knowledge. Both as proposed and as modified the instruction told the jury that plaintiff could be charged with knowledge of occupational injury even though he had no knowledge in fact, if they found that in the exercise of ordinary care he should have known.

At defendant’s request the court further instructed the jury as follows: “It is not necessary for a cause of action to accrue under the Federal Employers’ Liability Act that the plaintiff be aware of the exact cause of his symptoms.”

“In a case such as this it is not necessary in order for a cause of action to accrue that the effects of the substances in question have progressed to the point that plaintiff is disabled from carrying out the duties of a painter. ’ ’

“Inasmuch as the cause of action accrues in a case such as this when the claimed accumulated physical effects of the

We think all the foregoing instructions were erroneous as being instructions given upon a factual issue that did not exist. Stated another way, we think that as a matter of law the defendant had not made out the affirmative defense of limitation of action.

The applicable statute of limitations in an action under the Federal Employers’ Liability Act ( 45 U.S.C.A. § 56 ) reads as follows: “No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.”

In this ease where there was no traumatic injury which could serve to fix the time when the cause of action accrued, where the alleged injury was the result of the slowly accumulative effect of the inhalation of deleterious substances, the record before us, factually considered, would not sustain a finding by the jury that plaintiff's cause of action had accrued at any point of time anterior to three years before June 16, 1961, on which day he commenced his action. (Urie v. Thompson, 337 U.S. 163 [ 69 S.Ct. 1918 , 93 L.Ed. 1282 , 11 A.L.R.2d 252 ]; Coots v. Southern Pac. Co., 49 Cal.2d 805 [ 322 P.2d 460 ] ; Young v. Clinchfield Railroad Co., 288 F.2d 499 ; Bradt v. United States, 221 F.2d 325 .)

Although the evidence as to whether or not plaintiff’s condition was job-connected was the subject of sharp conflict, it could not be disputed that when plaintiff began this action he was suffering from pulmonary emphysema to a point where he was totally disabled.

The record is such that aside from the issue of limitation plaintiff was entitled to go to the jury upon the issue of respondent’s liability under the federal act.

Concerning the nature, cause and progress of pulmonary emphysema, each party offered expert testimony by phsyicians trained and skilled in the field of pulmonary diseases. Doctor Furlong, called for defendant, stated that pulmonary emphysema is a disease of unknown cause, although there are numerous theories among the medical profession as to its cause; that autopsies of persons who have died from emphysema show a degeneration of the elastic tissues supporting the

Doctor Webster testified as an expert witness produced by plaintiff. It was his opinion that inhalation of irritants, with resulting infection in the bronchi, is an effective cause of emphysema; that the disease occurs because the irritants cause swelling and thickening of the mucous membrane lining the bronchi, with a resulting increase in the secretions therein; that the secretions present obstructions to the passage of air through the bronchi; that the air thereby becomes trapped in the air sacs, which will, with sufficient excess air, blow up much like a balloon and break. This in turn impairs the elasticity of the alveoli and these areas are unable to contract sufficiently to squeeze air out of the lungs; that a second factor is that the secretions accumulate, the person coughs to get rid of this accumulation, and the pressure of the constant coughing also causes a breakdown in the alveoli. He said that in his opinion the bronchial infection produced is a sort of self-perpetuating circle in which the secretions provide food for the organisms normally found in the bronchial tree; that they overgrow and produce infection; that the infection produces more secretion, more food and more infection; and that as air sac tissue sustains more damage, the emphysema sufferer’s ability to expel air becomes progressively impaired, the chest becomes overdistended, and the cough is less effective to eliminate the secretions. He said that inhalation of sand and dust from sandblasting done by appellant would have

Doctor Furlong said that there was no evidence coming to his attention that plaintiff’s existing disability resulted from the occupational exposure described by him. He discounted sandblasting activities as a cause because of the brevity of such activities during the entire time of plaintiff’s employment and thought it had no significant effect in the production of his existing emphysema. He said that inhalation of dust, paint, vapors and other irritants would cause irritation, constriction and increased mucous flow into the bronchial tubes in one who already had emphysema, but this would be only a temporary aggravation and not productive of the degenerative condition of the alveoli found in emphysema.

Both witnesses testified that cigarette smoking, while not a primary cause of emphysema, aggravates an already existing emphysema condition; that a high percentage of persons with severe emphysema show a history of heavy smoking. There was evidence that the plaintiff herein had a history of moderate to heavy smoking. Doctor Webster considered that carbon tetrachloride, toluene, xylene, acetone, petroleum naphtha, benzine, methylene chloride and chloroform, ingredients found in the paints, thinners, paint removers and other material used by plaintiff in his work as a painter, were all more irritating to the lungs than cigarette smoke.

Doctor Furlong testified further that his examination of plaintiff, his knowledge of the subject of pulmonary emphysema, and particularly his readings in regard to paint sprayers having a particularly high incidence of emphysema, all led him to discount plaintiff’s occupation as being a probable cause of his condition. He said that he had known cases of emphysema among physicians, lawyers and other people who had never had any occupation involving dust exposure; and while his opinion was that plaintiff was suffering from chronic pulmonary emphysema, the disease had been slowly progressing over a long period of time and there was no evidence that his present disability resulted from occupational exposure. He further said that considering plaintiff’s shortness of breath, his coughing (going back as far as 1942) and his smoking habit, plaintiff’s disease followed

Plaintiff’s medical history, as reflected in the hospital records of respondent company, discloses the following: Plaintiff was born November 1, 1904, with no family background of respiratory disease. lie had polio as a small child which affected his right leg but did not impair his ability to work. He had influenza during the 1918 epidemic and pneumonia in 1920. In 1939 he was treated for stomach ulcers and again in 1949. On October 6, 1949, he had complaints of tiring easily and had a letter from the tuberculosis association reporting a questionable chest film. During his 1949 treatment X-rays were taken by respondent’s physician at the hospital and his chest was fluoroscoped. The doctor found a healed duodenal ulcer but nothing wrong with the heart or lungs. The first indication of respiratory pathology in the hospital records appears December 18, 1956, when plaintiff, while being treated as an outpatient in Sacramento, had a cold and was referred to the Southern Pacific Hospital in San Francisco for a medical checkup. The history showed his complaints then were chronic cough, stomach trouble and nondisabling shortness of breath. Examination, as shown by the records, disclosed that he was not malnourished; that his lungs had good expansion; that no rales were noted; that blood tests were normal. The X-rays then taken were in

We are satisfied that the record contains nothing from which the jury could find as a fact that prior to June 16, 1958, plaintiff either knew, or in the exercise of ordinary care should have known, that he was suffering from pulmonary emphysema, or any disease occupational!y contracted and either disabling or probably disabling. The situation here is well described in Bradt v. United States, supra ( 221 F.2d 325 ), a case of disabling pulmonary tuberculosis. The court said (p. 325) : “. . . Respondent maintains that the vague symptoms which the libelant had while he was on board the Pittston Victory were sufficient to put him on notice of his

Young v. Clinchfield Railroad Co., supra ( 288 F.2d 499 ) was a silicosis case. The court said at pages 502-503: “. .. The parties disagree over the meaning of the word ‘accrued’ as it is used in this enactment. The defendant company’s position is that as a matter of law the cause of action ‘accrued’ no later than the date on which the plaintiff terminated his employment in July, 1954, and that accordingly, as the present action was not filed until April 23, 1958, it is barred by limitations.

“Underlying this argument is the theory that a cause of action accrues the moment the injury is inflicted. The defendant is willing to recognize that when silicosis is the claimed injury, its onset is so gradual that it cannot be determined with certainty when the injury happened. Nevertheless, the defendant maintains that any injury for which it might have been liable was caused, of necessity, no later than July, 1954. From this the defendant would have us conclude that the cause of action must have accrued by that date and should be barred by limitations. We think that this contention is unsound.

“Many personal injuries are of such a character that the symptoms become immediately detectable. This is commonly the ease when one suffers burns, cuts, broken bones, etc. Almost from the moment that such injury is inflicted the victim is aware of his condition and the wrongful act which caused it. While he may not always know the extent of his disability, he is in no doubt that he was injured. Where such knowledge exists upon the occurrence of the injury we have an immediate accrual of the cause of action and the statutory period begins at that time.

“On the other hand, other types of injuries are not immediately detectable. Since the effects are usually long delayed, the victim does not know that he has been injured till he observes definite symptoms referable to the injury. Moreover, when the injury becomes apparent it may be totally impossible to determine precisely when it was inflicted. Silicosis falls in this latter category, and characteristically its

The court then quoted from Urie that portion wherein the Supreme Court said that to adopt the defendant company’s reasoning in that case would mean “. . . that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.’ . . .” (P. 502.) The circuit court continued: “Accordingly, the Court [Supreme Court] held that Urie’s cause of action accrued only after his condition had been diagnosed, for only then did he have notice that his legal rights had been invaded.

“The Urie case unquestionably demonstrates the Court’s view that when the nature of the injury is such that it does not manifest itself immediately, the determination of when the cause of action accrues does not depend on when the injury was inflicted. To the contrary the cause of action accrues only when the plaintiff has reason to know he has been injured. Generally this will be when his condition is diagnosed, unless it is shown that the plaintiff ‘should have known’ at an earlier date that he was injured. ... It follows that this is so even though the condition was not discovered by the plaintiff until long after the termination of the employment. It is to be noted that the basis of the Supreme Court’s decision in Urie was not that the plaintiff filed his suit within three years after leaving his employment, but within three years after his condition was diagnosed as silicosis.”

The circuit court went on to point out that the employer was contending that even if it could not be said as a matter of law that the cause of action of plaintiff therein accrued not later than his last day of employment, nevertheless, there was evidence that created a jury issue as to when it did accrue. Said the court: “. . . It argues that, although a medical diagnosis of silicosis was not made until August, 1956, less than three years before suit was filed, there was evidence

“The testimony furnishes no sufficient predicate for this line of reasoning in order to raise a significant issue. Young had been complaining of a number of ailments before terminating his employment in July, 1954. He had kidney trouble as well as shortness of breath, and had but recently undergone surgery for prostatitis. With a complex of symptoms this ignorant layman could not in fairness be charged with a recognition of his silicosis because one of his symptoms was shortness of breath. This is not a specific symptom of silicosis ; it is commonly indicative of many other diseases as well. Failure to associate it with silicosis at this early date cannot be treated as fault or neglect or a circumstance sufficient to create a factual issue. Residence in the mining country of West Virginia does not invest one with the expert knowledge or diagnostic skill sought to be attributed to the plaintiff. The sought-for inference could rest on nothing more than speculation. ’ ’ The court held, as a matter of law, that the defense of the statute of limitations had not been made out.

On the record before us we see no escape from the reasoning of the circuit court in Young v. Clinchfield, supra, and therefore hold that respondent herein had failed as a matter of law to make out its defense of the statute of limitations and that the issue should not have been submitted to the jury. Emphysema is more insidious than either tuberculosis or silicosis. Both expert witnesses agreed that whatever causes degeneration of the expulsive capacity of the lungs the end result is simply dead air in the lungs and lessened useful lung capacity. But due to the reserve capacity of the lungs no disability occurs until the damage is far advanced. Even then the symptoms are common to many other diseases and do not point specifically to emphysema. Skilled diagnosis appears to be the only sure means to knowledge—and even then the layman may not even suspect that his injury is job-connected. Respondent’s expert was convinced, after study, that it was not, and plaintiff’s expert was unable to go further

Since there was sufficient evidence to go to the jury on the issue of liability, we will now discuss appellant's claims of error in giving certain instructions other than those referable to limitation of action.

At respondent’s request the court instructed the jury: “If you find from the evidence in this case that the plaintiff was aware that the conditions at the job or jobs which he now complains of were a possible cause of aggravation of his illness, if any, and that he failed to exercise reasonable care by continuing to work at such jobs without bringing the matter to the attention of his supervisors, then you may find that Mr. Anderson was himself guilty of negligence.”

“If you find from the evidence in this ease that the plaintiff was aware that exposure to certain paints, solvents and other materials used by the defendant was a possible source of aggravation of his lung condition, but nevertheless failed to exercise reasonable care by continuing to work at the jobs in which he would come in contact with such materials, then you may find that Mr. Anderson was himself guilty of negligence. ’ ’

Appellant makes a number of complaints concerning these instructions, but we think that one only need be specially discussed. That claim is that the instructions are in fact instructions on the assumption of risk. We do not agree. They are cast in the language of negligence instructions, and the court specifically told the jury that under the Federal Employers’ Liability Act the injured employee of a railroad company does not assume any of the risks of his employment in any case where his injury results in whole or in part from negligence on the part of the railroad company or of its officers, agents or employees. Appellant’s further complaints as to these instructions on contributory negligence need not be specifically discussed, we think, for the reason that the jury returned a general verdict in favor of defendant on the issue of liability. As said in Rogers v. Southern Pac. Co., 172 Cal.App.2d 493 , 497 [ 342 P.2d 258 ] : “Several of the claims of error apply only to the defense of contributory negligence. The jury was properly instructed that under the Federal

Appellant claims the court erred when it instructed, at respondent's request as follows: “If you find from the evidence that the injuries, if any, which the plaintiff suffered, were due to his own unusual sensitivity to the substances in question used by the defendant and that the defendant, in the exercise of reasonable care, could not have foreseen that plaintiff would be so affected by the use of such materials in the manner in which plaintiff used them or was exposed to them, then you must find for the defendant as to such claim of negligence.”

Appellant first attacks this instruction upon the ground that there was no evidence that appellant was unusually susceptible or sensitive to the substances used by him in his work. We do not so read the record. If appellant’s decedent were injured, it was because he had contracted pulmonary emphysema through being subjected to deleterious substances used in his work. It was shown that hundreds of men had worked as painters for respondent in Sacramento during the 20-year period covered by the work-record year, and there was little, if any, evidence that any person engaged in the same work, other than appellant’s decedent, had contracted that disease. It is common knowledge that some people are allergic to many substances which have no detrimental effect upon the great majority. There is testimony that most, if not all, of the substances used were commonly used in industry by painters, and Doctor Furlong testified that there was no scientific evidence that emphysema is associated with painting or with the exposure to fumes that painters encounter. Doctor Webster testified that the pulmonary degeneration ending in

The respondent herein was entitled to an instruction submitting the defense of unusual susceptibility to the jury and the instruction properly included the condition that to make the defense effective the jury must also find that the employer in the exercise of reasonable care could not have foreseen the probability of this unusual effect upon appellant’s decedent. Respondent was charged generally with the use of due

The court at respondent’s request instructed the jury as follows: “To recover for negligence regarding the use of the various substances as claimed, plaintiff must prove by a preponderance of the evidence that defendant had actual knowledge or in the exercise of reasonable care should have known or realized, that the use of such materials or any of them, in the manner in which plaintiff used them or was exposed to them, was reasonably likely to cause harmful results, and did not take reasonably adequate measures to prevent such injuries.” Appellant's complaint as to this instruction is that the instruction omits an essential element. Appellant argues: “The essential element which has been omitted from this instruction is that if the substances are inherently dangerous, the employer supplying such substances for his employees ’ use is charged with the nature and characteristic of such substances. He is presumed to have that knowledge.” We find no evidence that the substances supplied by defendant

Appellant assigns to an instruction on the subject of the effect as evidence of negligence of changes made by the respondent from time to time in places of work, procedures or equipment. The court told the jury that if it found the changes had been made after the date on which plaintiff claimed to have been injuriously affected by existing procedures, equipment and place of work, it was not to consider such changes alone as evidence of precedent negligence. Appellant makes no objection to that part of the instruction. But the court went on to tell the jury about the policy which underlay the rule, saying for instance that “The law holds it unjust to find that because an employer, acting with the aid of hindsight or experience, attempts to make his premises, equipment or procedures free from danger, he is therefore to be charged with negligence prior thereto.” A good deal more to the same effect was included in the instruction, and we think it had better been left out. It made the instruction sound like an argument for the defense more than a statement of the law. However, the policy that underlies the rule was correctly stated, and we cannot believe that the material objected to was harmful to the plaintiff’s cause.

As hereinbefore stated, in 1959 when Anderson went to the hospital where the physicians found that he was suffering from “advanced pulmonary emphysema,” he was not told of his condition and was given a return to duty date, after which he worked for a considerable time before becoming work-disabled. During the trial plaintiff was seeking to prove that the Southern Pacific Company through the hospital physicians had been guilty of negligence in failing to inform Anderson of his condition and in returning Mm for work had been gmlty of negligence contributing to his disablement. Plaintiff also requested an instruction to the effect that since the hospital physicians were agents of the Southern Pacific Company and had assumed the duty of determimng Anderson’s fitness for work, if this duty were negligently performed by and through the acts of the physicians, and if it caused or contributed to Anderson’s disablement, and if it constituted proximate cause thereof, then it might find a verdict for Anderson for such damages as were thus caused. The evidence was excluded upon objection by respondent and

Appellant contends that the court erroneously instructed the jury that the defendant was entitled to the presumption that it had exercised ordinary care. The court gave BAJI Instruction No. 303-Q-, reading as follows: “To be entitled to recover in this action, the plaintiff must prove by a preponderance of evidence that the defendant was negligent and that its negligence was a proximate cause of the injury of which the plaintiff complains. That burden of proof is not fulfilled by merely showing that the plaintiff was injured while on duty on the premises of the defendant. In the absence of evidence to the contrary, a presumption exists that the defendant exercised ordinary care and performed its duties under the law. That presumption can he overcome hy evidence, hut only hy evidence which, when weighed against

In this case the pretrial order, in consonance with the pleadings, stated the issues to be tried. The charges of negligent conduct made against the respondent were the subject of a great deal of testimony pro and eon. The conditions under which Anderson worked over the long period of time he served as an employee of respondent were described in detail and much testimony was received as to whether or not those conditions, taking the evidence most strongly against respondent, could have caused emphysema, the specific disease which ended Anderson’s ability to work. The chemical constituents of the various paints and varnishes which were used by Anderson and his fellow painters, the steps taken to ameliorate the conditions under which the men worked with respect to their breathing the fumes given off by those substances, the efficiency or lack of it which the protective devices possessed, all these matters concerning the negligence of respondent as charged, were the subject of exhaustive investigation through testimony and other evidence submitted during the trial. This was a case then in which the presumption of due care had been dispelled from

It is to be noted that the impact of the instruction requested with respect to contributory negligence was far less than that which may be ascribed to the instruction here complained of where contributory negligence was not a defense, whereas the failure to prove negligence of the respondent was fatal. Furthermore, and without reciting the evidence, we can say with confidence that the proof of contributory negligence on the part of the plaintiff was extremely weak, if it amounts to anything at all. It was not until the emphysema was found to be in an advanced stage that the hospital’s physicians informed plaintiff that he had con

Appellant complains of error in refusing to admit certain evidence. First, the complaint is against the ruling of the court sustaining objections to the qualification of a witness offered as an expert in the field of customary practices in doing the various things done by plaintiff during the periods in question. Next, complaint is made of the court’s refusing certain proposed evidence that other employees on the same or similar jobs as those worked on by plaintiff had sustained respiratory injuries. In such matters the court exercises discretion, and without going further we think that no detailed discussion of these complaints of error is necessary.

As we have said the record discloses error. Were the errors prejudicial to the extent that the judgment should be reversed? We think not. By article VI, section 4%, of the Constitution it is provided that “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence . . ., unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In People v. Watson, 46 Cal.2d 818 , at page 836 [ 299 P.2d 243 ], the court said: “ [I]t appears that the test generally applicable may be stated as follows: That a ‘miscarriage of justice’ should be declared only when the court, ‘ after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error. ’ ’

The record here discloses a very weak case for the plaintiff. While we have stated that instructions upon the

The only other error that deserves consideration was that committed by the court when it instructed the jury that on the issue of negligence the defendant was entitled to a presumption of due care. Ordinarily this would be a serious error. But when the error is looked at with the whole record being considered, we are left with the firm opinion that it is reasonably probable a result more favorable to appellant would not have been reached in the absence of the error. Proof of causation was extremely speculative, and as to negligence, the record discloses constant concern for worker welfare and the adoption of devices to ameliorate adverse working conditions by protective devices furnished by respondent. The record shows these devices were changed from time to time as other devices became available. Indeed, the record shows that plaintiff’s claims of negligent conduct were not so much that care was lacking as that the protective devices were inadequate, a subject on which the evidence was sharply conflicting. Without going further in discussion, we are satisfied that the judgment appealed from should be affirmed.

The judgment is affirmed.

Pierce, P. J., and Friedman, J., concurred.

A petition for a rehearing was denied January 7, 1965, and appellant’s petition for a hearing by the Supreme Court was denied February 10, 1965. Peters, J., was of the opinion that the petition should be granted.