Wiley Blount Rutledge

“ We do not doubt that at 'common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present.' [22]
Viewing the Federal Employers' Liability Act as a negligence statute, we think that arguments drawn from the coverage accorded occupational diseases in state workmen's compensation statutes cannot control the present inquiry. ”

“ Upon the assumption that silicosis when caused by the employment is a compensable employee 'injury,' the adequacy of petitioner's claim turns solely on whether his original complaint alleged facts raising a triable issue of negligence. ”

“ Thus the Boiler Inspection Act vests in the Interstate Commerce Commission rule-making power adequate to protect employees against disease as well as against accident; and the power to make rules for employee health has been exercised. ”

“ All the usual elements are comprehended, including want of due or ordinary care, proximate causation of the injury, and injury within our assumption for present purposes of statutory coverage.
To sustain the contrary view, however, the Missouri Supreme Court seems to have ruled as a matter of law the respondent had adhered to the customary standards of the trade, stressing the admission in petitioner's complaint that the sanding devices alleged to have been faultily adjusted were of the kind ordinarily used throughout the rail oad industry. ”

“ The language is as broad as could be framed: 'any person suffering injury while he is employed'; and 'such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier'; 'by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc. On its face, every injury suffered by any employee while employed by reason of the carrier's negligence was made compensable. ”

“ There was neither admission by petitioner nor evidence of anything more than that respondent's sanders were 'all of the usual and customary type' which, if kept properly adjusted by ordinary care, would not have allowed such large and excessive quantities of silica dust to escape, concentrate in the cab, and be breathed by petitioner. There was no admission that other railroads generally or in the region customarily used such high silica content materials for sanding purposes or that, if they did, they did not take steps to minimize potentially harmful effects. ”

“ It is urged upon us that Rule 120 was designed to insure an adequate auxiliary braking system rather than to protect employees against silicosis, and hence that, notwithstanding respondent's breach of the rule and the governing statute, petitioner cannot complain of an injury flowing from the breach which was not the injury the Interstate Commerce Commission sought to guard against. ”

“ This permanently disabling affliction had been caused by continuous inhalation of silica dust blown or sucked into the cabs of the locomotives on which he had worked. The injurious concentration of silica dust in the air breathed by petitioner arose from the railroad's use in its locomotives' sanding boxes of sand materials containing 80 to 90 per cent of silica or silicon dioxide and the emission by the locomotives' faultily adjusted 'sanders' [2] of such sand materials in excessive amounts beyond those needed to provide traction for locomotive wheels. ”

“ We see no reason to think that a policy requiring the reporting of all injuries the causes of which are readily identifiable in terms of time and place compels the conclusion that other injuries, the origins of which may be remote and ill-defined at the moment of diagnosis, should not be compensable when the carrier's underlying responsibility becomes a matter of demonstrable fact. ”

“ There is no suggestion that Urie should have known he had silicosis at any earlier date. 'It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be 'injured' only when the accumulated effects of the deleterious substance manifest themselves * * *.' Associated Indemnity Corp. ”

“ This last-quoted sentence merely recognized that theretofore the Interstate Commerce Commission had not regulated with an eye to employee health; it did not and does not support the view that employee health was thought not to be wihthin the compass of the Act, as other language in Napier, 272 U.S. at pages 611-613, 47 S.Ct. at page 209, 71 L.Ed. 432; makes amply clear:
'The requirements here in question are, in their nature, within the scope of the authority delegated to the Commission. An automatic firedoor and an effective cab curtain may promote safety. ”

“ Upon respondent's appeal the Missouri Supreme Court reversed the judgment entered on this verdict. 357 Mo. 738, 210 S.W.2d 98. Noting that on the former review it did not 'treat with a contention that 'silicosis' is not an evil at which the Act is aimed,' id., 357 Mo. at page 746, 210 S.W.2d at page 102, the court concluded that the Boiler Inspection Act 'is aimed at promoting safety from accidental injury, as distinguished from injury due to the gradual inhalation of harmful dusts.' Id., 357 Mo. at page 749, 210 S.W.2d at page 105. ”

“ In the light of the instant case, it is of interest to note that the Engineer's Brotherhood and the Firemen's Brotherhood, interveners in support of the proposed rule, alleged need for protection from, inter alia, 'excessive * * * sand and dust storms.' Transcript of Record, supra, Joint Petition of Intervention of Alvanley Johnston and D. B. Robertson, p. 3; Amended Joint Petition of Intervention of Alvanley Johnston and D. B. Robertson, p. 3. No substantial evidence seems to have been adduced to support the allegation, Transcript of Record, supra, Brief for Intervening Brotherhoods, pp. ”

“ Occupational Disease Compensation, 26 Am.Lab.Leg.Rev. 2; Andrews, The Tragedy of Silicosis, id. at 3. For local studies of the problems posed see Owens, Diseases and Injuries to Health under the Wisconsin Workmen's Compensation Act, 1945 Wis.L.Rev. 357; 3 John Marshall L.Q. 241.↑ Claim of Edward Edmonds, June 23, 1913, Opinions of Solicitor, U.S. Department of Labor (1915) 259.↑ Claim of Willard E. Jule, July 28, 1913, Opinions of Solicitor, U.S. Department of Labor (1915) 261; cf. Claim of C. M. Arata, Dec. 31, 1913, id. at 264 (lead poisoning and bronchitis) .↑ Claim of Basil E. Clark, Apr. ”