*1 jurors, of the need not be considered since we have concluded trial justified in granting court a new trial.

The order of trial re- hereby court is and the cause sustained manded.

It Bolding is so Barrett, CG., ordered. concur. PER foregoing opinion by C., CURIAM:—The Westhues, adopted opinion judges of the court. All the concur. Guy Thomp (Plaintiff) Respondent, A. La Roscoe Verne Evinger, son, Trustee, Missouri Company, Corporation, Pacific Railroad (Defendant) Appellant, No. 43634 265 S. W. 726. Banc, en Court March 1954. *2 Harvey B. appellant. Harold L. Sommers for Donald *4 n &Green for

John Haley, Jr., Trusty, H. W. Guy Pugh Green and respondent. *7 Liability

HYDE, Employers’ P. J. Action under Federal (45 51) dermatitis, Act to have been damages U.S.C.A. for for claimed a by bichromate, by caused contact used defendant as with sodium cooling system engines. rust in Plaintiff inhibitor of its diesel had a for $35,000.00 appealed verdict and defendant has from judgment entered. verdict;

Defendant it and the contends was entitled to a directed principal question, in therefore, negligent whether defendant using (containing determining chrome) without compound using employees, warning them or could cause harm to some itsof

protective doing inspection a and measures. Plaintiff was machinist repair Osawatomie, He work at in Kansas. defendant’s roundhouse May many years on for engines worked steam went to exclusively any work skin be- diesels. He had never had trouble began using fore the rust inhibitor diesels that time. Defendant its early by Dearborn product made blended Chemical containing Company Chicago Compound No. called Dearborn yellow powder; per to 70 cent sodium It three bichromate. pounds gallons put it was and the mixed with of water solution in the laborers. there were radiator radiators of the When diesels yellow machinery, deposit leaks dried be left on the floors and would deposits walls of the diesel and radiators such when the were drained shop left on trucks of be the floor of the on the the diesels. cylinder yellow When a head leaked there would be a residue grease get into around thé exhaust stacks it would also the lubri- cating pumps, cylinders, oil. water changed Plaintiff removed re- *8 placed gaskets general repairs and and parts adjust- other made and work, ments. In this frequently he come contact would in yellow with plaintiff the fluid or residue. No ever told 'its dried one gave any warning substance him what the contained about contact with it. Plaintiff also radiators flushed said the were never with clear the, water that not and diesels were cleaned he worked on them. before In breaking itching November noticed a out and on fingers. gave the backs of his He got it home but it treatment worse so he went to Hospital Dr. of the Pacific Johnson Missouri in January respond Association His condition not 1949. did to treat- got lay work, ment but worse and Dr. Johnson him advised off work, which he did February 5th to March 5th. Pie returned to wearing gloves rubber advice on the of Dr. but Johnson, his hands became out gloves broken and swollen as far as on went his wrists quit so he work March and on 8th went to doctor. another The break- ing ran up finally out his arms, legs, arms and affected his face and on body; 19th, March Hospital he was sent to Association Louis, stayed in St. where April he until He 1st. tried to work May again on 27th, taking weekly 23rd and on June after treatments hospital, at again but broke out hands and arms both times.

Plaintiff’s medical was evidence that he had chrome dermatitis by coming it that was caused contact with the sodium bichro- mate solution used diesels, deposits and its on and around them, during his work. Patch tests on plaintiff’s made skin with deposits they these showed type that him to cause have this dermatitis. Plaintiff’s also evidence was that chrome dermatitis was an occupational disease; considered that known it had been to the profession medical fifty years for more than and that about 20% (One are said exposed to it affected doctor persons it. 2%.) was about The form which 27%; defendant’s evidence immaterial, said to sensi- is found was be since the chrome substance rather than to the bichromate. Chrome tivity is to the chrome itself tanneries, mills, been found in connection with woolen dermatitis has air-conditioning plants, factories, plants, aircraft furriers, automobile glue making, and factories, lithographing, printing, blueprinting, shoe many employees, prove other industries. Plaintiff offered that other working diesels, got him on kind of dermatitis with also the same compounds but denied. It also stated chromium this offer was that irritants; that a have toxic effect and skin but considerable are period exposure required is to result in dermatitis from contact test Therefore, pre-employment it conceded chrome. that concerning sensitivity testified, could not determine to it. One doctor ailment, plaintiff’s the nature of as follows:

“Q. you far classify allergy, Would so as dermatitis Evinger Mr. was concerned? Well, very question that is a not to answer. It is difficult

“A. usually type allergy. the usual of rash that we consider What we consider very point ‘contact There is a fine of distinction dermatitis’. between the two.

“Q. you Can make that distinction? try.

“A. I usually will Allergy, person we when a consider that violently to ordinary person reacts certain does materials dermatitis, usually react to. Contact we consider the material irritating is people question skin all of the degree exposure degree which determines the of dermatitis.”

Defendant’s evidence showed that the first ca'se thejr began dermatitis after use compound. the sodium bichromate Its use *9 by was recommended was the manufacturer of the diesels. It purchased a packaged by as article trade name. Prior 1949 the to Dearborn Company any warning Chemical never use issued as to the of the compound, began January warning but on 1949 stencil a to all begin containers. Defendant not at regular did use of diesels Osawatomie until November 1947 to put and first on three shifts May plaintiff service them in 1948 when started that work. Defend engineer ant’s of tests approximately quantities knew the chemical of compound the and knew that or sodium bichromate was toxic poisonous only but considered it to that effect if taken have internally. (author Defendant’s witness Dr. of Edmund N. Walsh an article in the Journal the of of American Medical Association November 1951 on resulting dermatitis from contact chro with diesels) cooling mate in water of is testified that sodium bichromate not a primary (irritant everyone) irritant to and that chrome derma titis is the allergy; result of an that is a different to reaction material than that average of the or usual individual. He that said concentra irritant in certain skin powerful bichromate was

sodium not be compound would in the Dearborn that the amount tions but a definite said chromates were persons. all He also that an irritant to 19th known in the their were hazard and that effects industrial probably had chrome Century. gave opinion plaintiff that his He gave his Stryker Dr. Y. Gerald dermatitis. Defendant’s witness by his plaintiff’s absorption of opinion that was the result rash and not system evidence, fungus infection, which he found petition original plaintiff’s It also shown that chrome dermatitis. was and of his alleged grease the cause dermatitis contact with oil publication after not until that sodium mentioned bichromate amended, filed. petition was Walsh, when an of the article Dr. diagnosis as plaintiff’s However, hospital of 1949 stated record in diesels a notation “works dermatitis” with that “contact chemicals”; and greases and other and contacts numerous oils and he “providing work stated in could return to October with require job is to does not his contact transferred some which ’’ oils, greases and chemicals. escape position takes “a master can never Plaintiff being knowledge charged law of the nature as matter of general used in characteristics of substances constituents those no is available to business unless scientific information even having special acquaintance subject with the involved.” Defendant says inherently dangerous only apply this rule could use of only are apply does from which there substances but not those dangers possible dangers; wholly inapplicable possible when the persons only peculiarly susceptible are not to all but to those particular substance. plaintiff’s the result

Defendant contends that condition sensitivity allergy. negligence peculiar of its own or but of his not result Defendant further that even if his condition did contends negligent allergy, evidence show nevertheless the does not it was in failing compound. harmful discover the characteristics says proof it, there actual Defendant must be some of notice to either danger compound, constructive of harmful effects of says inherently dangerous; notice was not and that constructive employer charged knowledge is not with the of medical science only possessed by but men of knowledge with the facts scientific general education; citing Daigneault, M. T. & Co. Stevens Sons v. 1st, (2d) 53; U.S.C.A. F. v. Petroleum Grammer Mid-Continent Corp., 10th, Co., (2d) 38; F. Allen v. U.S.C.A. Shell Petroleum 651; P. Co., 291; Russo 286 W. Koetsier v. Swift & N. Cargill Co., 51; 217 N. A. & W. Waddell v. Guthrie U.S.C.A. *10 Co., 17, 19, 10th, (2d) 977; McHugh F. v. 45 National Lead 60 F.S. 20; Luechtefeld, (Mo. (2d) 5¡37; App.), 157 S. Marsanick v. W. Hanson, and v. 134 F. 8th, Lowden et al. U.S.C.A. 348. plaintiff’s position extreme, we think we must hold While too knowledge, constructive, of actual or the harmful that defendant’s compound jury question. of the sodium chromate was a characteristics Employ- must remembered that this is case under the Federal It be Liability question negligence ers’ Act'and that the under Act by principles and is to be determined the common law as established applied (Urie Thompson, 163, Federal in the courts. 337 U.S. S. v. negligence, it 1018, 1282.) Ct. 93 L. Ed. The Urie case means that was meaning Act, if by of the defendant knew or the exercise within known, (in conduct of due care should have that its standards of compound) inadequate plaintiff protect use were and similar- employees. ly (69 Ct., Furthermore, situated S. l.c. 1028.) definitely occupational “injury” Urie case holds that an an disease is meaning within the of that term as used in the Act. case)

It is true that (involved the fact of silica dust in the Urie being knowledge harmful was said to be a matter of common and that employer was bound to know it. The harmful characteristics compound, the chromium herein involved, are not a matter of common knowledge and proof burden in the to show that exercise of due However, care defendant should have known it. we think (See Young had substantial evidence on that issue. Pennsylvania (2d), (2d) 727.) R. F. U.S.C.A. It was by plaintiff’s shown evidence, by and also defendant’s expert, long experience there was history and as to the use of chrome com- pounds industry and that considerable information was available on subject. (See 2 Gray’s Attorneys’ also Text Book of Medicine 1519, Chapter 142, particularly 142.03.) Although Sec. defendant bought compound reputable from a packaged manufacturer as a article name, under trade it knew what and it knew it was toxic to (See some extent. 575, 144.) 35 Am. Jur. See. We think the number and variety industries, in which chrome had been used and ill from by effects observed, shown parties, evidence of both has important bearing upon imputed the issue of constructive or knowledge; and we think distinguishes that situation case those cited defendant. It was at least reasonable inference from the wide experience industrial with chrome that there was available information about it outside the medical profession, and it shown that there were United States Government pamphlets phases on some subject of the as well as medical books. It was said in 39 604, 1050, C. J. repeated Sec. C.J.S. Sec. many and cited in eases: “With respect duty to the employees

warn of the work, charged hazards of the the master is knowledge ordinary of the usual dangers and hazards to which he is exposing employees, and is bound to know the normal premises condition of his to know the nature of the constituents general characteristics of the substances used in his business *11 670 ordinary- with give directions for the conduct thereof

so that he can ordinary care; and safety performing the work with to his servants chargeable knowledge risks as the master with a of particularly is an knowledge facts which only through a of scientific certainable imputes presumed to know. The doctrine which uneducated man is not ‘assumption knowledge called the doctrine of this to the master-is knowledge determining the law purpose and for the of this skill/ vary capacity the actual has a standard does not ignorance for a particular master, consequently his is no excuse and notes 20-23 (See 1050-1051, warn.” cases cited 56 C.J.S. failure to relies; very a case see Mid-Continent on which for recent also (2d) 176; see Pipe Price, 626, 225 P. Line Co. v. Okla. dis liability occupational for employer’s annotation on common law (2d) ease, 80; Co., 288, 352 Mo. 177 S. W. 105 A.L.R. Orr v. Shell Oil 422, Gilliland, 295 W. 608; (Ky.), R. Co. v. S. Louisville & Nashville 392.) agree with A.L.R. and Annotation 53 A.L.R. While we inherently generally applicable principle is to defendant dangerous likely explode), (especially those to burn or substances many can known that contact with chemicals nevertheless it is well requires investi produce and think due care some harmful results we long in use gation concerning which have been experience those to jury knowledge for the industry; in and is issue that constructive long experience when the shows a and varied industrial evidence such as it does this ease. concerning allergy, also to this was

As defendant’s contention might anyone jury issue; a and evidence to- there was some show is long exposure. This evidence be affected with sufficient continued following dermatitis from in accord with the statement about contact “Although, Loeb, p. 476: the Textbook Medicine Cecil & capacity quantitatively, there is a wide variation immune, pro react, persons of different no one is considered skin to sufficiently repeated application of epidermis exposed vided the to ’’ experience other any a known eontaetant. In the evidence of event, very per cent of those at that a substantial industries least showed affected; if defendant exposed compounds to would be and chrome employees reasonably number of its could foresee that considerable duty affected, it have to exercise due care would be so applied in prevent injury. principle has been cases such This unusually susceptible liability persons of manufacturer or seller (See Dept. May harm sold. Arnold v. from the article or substance Co., 727, (2d) 748; on Unusual Stores 337 Mo. 85 S. W. Annotation 973-979.) As Susceptibility Injury, 26 A.L.R. stated 45, 143 N. W. which we Co., Brown & 177 Mich. Gerkin v. Sehler May Dept. supra, quoted and in Arnold Stores followed and (85 (2d), 753) fact is once W. l.c. : “When the established S. commodity apparently that a^ certain by experience demonstrated concealed to the dangers, harmless contains when distributed for public through purposes the channels of trade and used for the to, sold suffering injure which it made is sure to cause of, purchaser, though percentage the health some innocent even duty injured large, responsibility be not to and a arises .those extent, upon rests knowledge manufacturer and dealer with to the *12 warning ignorant of least, at consumer user the of the or of existence * * * danger. great majority persons the hidden the are That of particular danger safe from sold, the in the article or that concealed injuries in use, against few its result from militate fact does not principle this danger per when the certain fact of to a imminent centage is established.” It in was likewise held Le Lenko v. Wilson Co., (Conn.), II. Lee (2d) 253, (a Compensation 24 Atl. Workmen’s ease) occupational generally that an a disease need be usual and not recognized (that employment incident of the is the result of the usual work) and, therefore, compensation a would not be to worker denied who peculiar contracted such a disease from his because of work susceptibility (See to it. 751, 248.) also 58 Even Am. Jur. Sec. if this compound dangerous chrome was everyone, not to the evidence was sufficient to injury show that could it a considerable cause to number that, of-those who in daily came contact with it and because long experience of many industries, with chrome in substances the jury reasonably could have of found that defendant in the exercise due care danger employees. should have known its of this to Our conclusion proper is that it to for the Court to submit the case jury. the alleges 2,

Defendant at giving 1, 14, error in and instructions request the plaintiff, refusing of and in it. by D offered instruction Instruction 1 in paragraphs hypothesized six numbered facts the and a plaintiff. explained authorized verdict for Instruction 2 de duty ordinary fendant’s to exercise care to discover nature and general characteristics used in its business. Instruction of substances 14 was on of damages. the measure 1

Paragraph jury of 1 that Federal Act instruction told applied duty “that said law it was of to and under the defendant provide employees place exercise reasonable its care safe work, employees dangers employment and to in and warn said avoiding injurious furnish them with the means of are substances that says to their health.” Defendant this abstract statement is too broad dangers because latent undiscoverable are excluded and and not dangers knowledge limited or was not of which defendant by ought knowledge. exercise reasonable care to have had However, paragraph required jury 1 find 3 instruction by ordinary ordinarily “that of such care as careful the exercise prudent persons ordinarily exercise the same similar .under for safety employees circumstances the reasonable of their in their 672 realized have known and

work, conld or should the defendant’ results harmful reasonably likely to such cause such substance was question.” engaged doing work in employees to some of the so defendant, request of 3, given at the Furthermore, instruction finding upon for converse verdict defendant authorized misleading indefinite, ambiguous, or any proposition. Therefore, same 1 clarified language paragraph 1 instruction effect (See together and was sufficient. by the instructions read cases 487, 492 and 485, 222 S. W. Thompson, Mo. Counts v. portion of quoted cited.) last above also criticizes the Defendant ordinary stating the test of improperly 3 of 1 as paragraph instruction usually by persons the care exercised care because it did submit R. business, citing Northern engaged in the Canadian kind same However, Senske, 8th, 201 637. Co. v. U.C.A. F. discussion defendant concerning an instruction offered that case was requested no instruction in this case refused. such Defendant suffi- paragraph think the 3 of instruction was we submission 54, S. Ct. R. S. (See cient. Tiller v. Atlantic Coast Line U. 610.) says Ed. Defendant further that instruction l.c. 87 L. *13 by not speculate liability of jury 1 the to on the defendant allowed necessary every negligence of submitting to establish essential element 894, (2d) Manchester, S. defendant, citing 358 217 W. Yates v. Mo. any says 541. omitted was the submission of What defendant was have finding jury facts could it should upon the base that knowledge any over- danger compound. from the Defendant of explained by looks the fact that this matter further instruction was by Moreover, fully if this was covered defendant did not think 2.. 1, herein above paragraph what 3 of instruction was submitted in clarifying or quoted, 2, in and instruction it should have offered W. amplifying (Hooper Conrad, (Mo. Sup.), 260 S. instruction. v. (2d) 496.) criticism thing We think the same is true of defendant’s knowledge” too of in 2 as of the use the term “scientific instruction broad; giving prejudicial and we there was no error in instruc- hold 1 tions and 2.

Defendant contends as to instruction 14 that it authorizes damages physical disability earnings for and future loss of without of past substantial evidence of and does limit loss earn either not ings to here petition. the amount in'the We think the stated facts disability; above stated shows show even defendant’s evidence plaintiff that work claims do at a rate it could worrld be lower mechanic, paid position than that as mean some for his which would testimony earnings. Furthermore, plaintiff’s future of loss medical earning was his capacity substantial evidence show that had been past reduced for sometime the future. A&to the amount of loss of earnings petition, plaintiff’s stated in the defendant claims that figures evidence shows more than that amount. Defendant’s do not farm earned at the amounts into consideration seem to take time during period difference in between that and the etc. work However, since this evidence petition and the filing of the trial. amend- petition could considered as objection, be without came v. (See Brown Terminal Sec. 509.500 RSMo V.A.M.S. also ed under 124; Smyth Hertz 120, (Mo. App.), (2d) 164 S. W. Assn., R. W. We hold (Mo. (2d) 56, 60.) Stations, App.), S. Driv-Ur-Self 14. prejudicial giving instruction no error in there was D “You are'instructed as follows: Refused instruction was or the dermatitis you find from the evidence that if believe that own plaintiff suffered, if was due injuries, any, which other sensitivity result in whole physical allergy, did not condition, defendant, part on the of part any negligent or in act or omission ’’ think there for While we your then verdict must be the defendant. this allergy, of the defense justify was evidence submission was of it. An instruction proper instruction was not a submission Co., supra, given May Dept. Stores on that defense in Arnold v. finding product used was 754, requiring S. that W. l.c. is no purpose it There poisonous for for which was used. Musgrave v. finding required (See such instruction. also this Certainly Mfg. 583.) N. 169 A. some Great Falls H. well as the- finding as of the substance as to the characteristics necessary proper be for a susceptibility in Therefore, hold this allergy. of the we submission defense properly refused. struction was warnings alleges admitting evidence of

Defendant also error No. issued subse- handling compound, to the Dearborn quent plaintiff’s injury. This shown on cross-examination was Company (warnings of the stenciled officer Dearborn Chemical be containers) begun was stated to and the time when lay-off January from work plaintiff’s 1949. This before first period pleadings so time in the was within the *14 event, In only objection any was within time. was that it not that merely previously had of similar which it was cumulative evidence Directing the objection. in without Chemist of Dearborn come The warning a on the Company had that was containers testified there Skin”; he With and that stating: Avoid Contact “Caution Chemical doing We, that. there- long know the had been company did not how this prejudicial the admission of fore, hold there no error in was evidence. is excessive. final is that the verdict

Defendant’s contention 1952. trial years was 49 at time of the in October Plaintiff old the exception of two He worked 1918 with the had for defendant since years only grade a school had education with another railroad. He 22.72 expectancy' His was and had been a machinist since 1927. life year his years. In addition to He the of 1948. earned $3600.00 hospital hospital treatment in 1949 had been at he treated at the least ten 1950 and in both 1952. times five six times 1951 and got His condition cleared at He had had times and then some worse. legs arms, dermatitis on his and neck trial. The at the time of the itching sleep. much caused discomfort and loss of He had done some work, farm putting up hay, building fences, other digging ditches and manual labor from which he earned to the $450.00 $550.00 years gets three before the When he the trial. warm sweats out, gets sore, dermatitis still breaks his hands swell and his face glasses. sometimes Strangers so he cannot wear him his shun because However, say his skin condition. none of his doctors would that his condition permanent, although they was opinion were of that long would long. take a up time to clear and did know how not They say did he could never be in contact with chrome substances breaking without out. plaintiff’s thought One of doctors would this chrome, include metallic fittings, as used furniture and automobile but cross-examination he he said had never seen chrome dermatitis from that. plaintiff man repair Defendant offered work aas car which its eventually evidence pay per showed would within four cents hour his pay. However, machinist’s him lose his cause to seniority a require helper. as machinist him to as a start carman’s shortage could soon He have been to advanced carman there no as was department. work in the ear approval Plaintiff’s transfer any the union chairman, accept but he did made of work offers by defendant, helper. which also included work as an electrician’s One reason accept did not who treated that doctors him the hospital gave at him impression grease oil and that the cause However, of his patch plaintiff’s trouble. tests- doctors no showed reaction to employment oil. Plaintiff was offered as also dispatcher radio for Department but, after Osawatomie Police trying it, decided job. attempted he could not handle the He has not get to any regular employment, resigned but has not from the rail- road and is still on the seniority right machinist’s roster go back to work. We think the verdict was excessive because we cannot find plaintiff had disability substantial his evidence total or that dermatitis permanent. would be It seem does obvious he could not continue the doing, diesel work he had new been even with the protective measures, because chrome he sensitivity has developed. earning now capacity impaired Thus been and he has has had past earnings, amounting considerable more loss of $12,000.00 than However, at time places of the trial. “the law upon duty ordinarily prudent to act as man to minimize consequences,” earnings. avoidable (Phegley Gra- ham, Abernathy (2d) 499, 505.) 215 8. W. Plaintiff cites Mo. *15 Railway Co., (Mo, Sup.), v. St. Louis-San (2d) Francisco 237 S. W.

675 477; T.R.R.A., 280, (2d) v. 362 241 W. 161; Timmerman Mo. S. Douglas v. (Mo. 42; Dempsey Thompson, Sup.), (2d) v. 251 W. S. comparable Sup.), (2d)W. Twenter, (Mo. 259 S. 353. These are last cases, the and the injuries first three involved serious vertebral including woman, disfiguring injuries one a of facial to a was case inability taste, permanent injuries resulting nerve and in muscle The v. Shell eat swallow. nearest case to this one we know of Orr (2d) case, Oil Mo. S. W. 608. In that the 352 177 got rash, finally a working chemical, from with a which covered body, permanent, nephritis, entire a chronic he also suffered kidneys Bright’s inflammation of Plaintiff the also known as Disease. kidneys part herein a said his were affected but that was some this of his resulting nervous condition from the dermati- discomfort Bright’s any kidney tis. He did not as have condition as serious Disease, apparently longer but his dermatitis is much lasing persistent ease, more trial than was true in Orr case. In that the the $40,000.00 $20,000.00. court the reduced verdict of We said original In verdict but refused to reduce it. was excessive further the view the decrease of the value of the dollar since the time ease,' although injuries Orr more in that case to have been seem disabling, larger we think verdict can be Our conclusion sustained. is that in case is the maximum amount that can be sustained $25,000.00.

Therefore, days if within fifteen enter here re- will $25,000.00 mittitur of $10,000.00, judgment will for be affirmed Otherwise, judgment of the date the trial court. judgment will be a new reversed the case remanded for trial. Opinion of Hyde, J., adopted, accordance with Per Curiam filed. PER Bane makes CURIAM.—Defendant in a new brief filed in “ allegations three additional error. The first There no com is: was petent experience evidence of of other claims industries.” Defendant hearsay that what was said about this was because of references testimony really a to medical articles. This is textbooks and only knowledge original renewal defendant’s contention that the substances, shown, as consequences to harmful use of chrome of the the knowledge profession. However, of medical we held what parties experience the evidence of both showed a wide industrial with chrome and that there was information outside available about it profession. certainly medical It that much of makes no difference testimony men; experience industrial came from medical about fact, they knowledge of it the industrial because of results of experience following supplemental with it. Plaintiff’s brief cites the involving they cases disability, showing year chrome decided, namely: Repka Mfg. Co., were N. Y. v. Fedders 264 (1933) Miller, ; Inc., N. T. M. Crutcher Dental E. Depot, Chem, 251 Ky. 201, (1933); W. Sutkowski v. Mut. S. *16 676 Yale & 53, (1935); 71 v. America, of 178 Atl. Cell

Co. 115 N.J.L. ; 564, (1937) National Mfg. Co., Towne 281 Mich. 275 250 N.W. 522, Pleas, N.J.L. Refining of 123 Products Co. Court Common (Ohio App.), (2d) 10 Lite (1940); A. 148 Shoemaker v. Auto Co., 314 Mich. (1942) Ramsey 41 N. E. v. Bendix Aviation (2d) ; com- 169, (1946). W. Plaintiff cites -workmen’s N. also pensation occupational recognizing statutes chrome a cause of as disease, Annotated, 1947, Vol. follows: Sec. Arkansas Statutes par. Sup. 17.220; 81-1314, 5; Michigan Statutes Annotated Cum. Chap. Recompiled 1950, 2c, North Vol. Carolina General Statutes 97-53, p. 1465-68(a), Baldwins 294; Ohio General Code Sec. indicate 1953 Ohio Revised 4123.68. These cases and statutes Code experience ad- industrial with chrome substances. We considerable ruling showing here to our that there was a of industrial sufficient experience knowledge with to make constructive chrome defendant’s of jury its harmful question. characteristics allegation second error is: “The trial court

Defendant’s of in excluding pertinent erred relevant material evidence experience assignment comply of other industries.” This does not ruling 1.08(a) (3) our Rule it fails to show what because of why wrong. court is claimed to be erroneous and it is claimed to be any authority, leaving Nor this is there citation of to us to brief point. argument, part In the it is stated that of the cross-examination Mr. Company excluded, of Wilkes of which would the Dearborn any have company experience shown that this had no of adverse effects handling compound laboratory from the of this in its it had that taken precautions any protect employees. no of kind its The ob jection similarity However, was that no conditions was shown. no proof specific offer is mat was made and there no mention of this (See 3.23.) (It might ter in the motion for trial. Rule noted new be Company testify: Milnes of the Dearborn did thereafter Mr. knowledge injurious any being “We have no of it of our em * * * ployees”; employees consider it for our that: “we safe them.”) spill men can it on prop handle it and Defendant has not erly preserved presented anything appellate or for review. allegation

Defendant’s third of error is: “The trial court give by in refusing erred instruction A defendant.” This offered good allegation 108(a) (3) is as an of error but is defective under failing any why ruling wrong, to state was claimed to reason be namely, points However, on.” importance “the relied because ruling impression, this case in of first we consider the mer matters A allegation its of this of error. Instruction was as “You follows: you compound are instructed if find that Dearborn anti-rust plaintiff, Evinger, mentioned in evidence with which Roscoe LaVerne shops defendant, came contact his work as machinist at the Guy Thompson, Trustee, Osawatomie, Kansas, inherently A. at not you if body ordinary person, and poisonous contact to an normal substance, possessed or to such find that was sensitized substance, sensitivity, which idiosyncrasy allergy or to such innate if men any, injuries, him to caused suffer the dermatitis and other did you that defendant evidence, in the and if find tioned further substance, know that such or such not was so sensitized to sensitivity, idiosyncrasy allergy, and that defendant innate care, ordinary have known the exercise of thereof *17 the reasonably employer as a exercise under such care careful circumstances, your for the defendant.” same verdict be then must body required inherently poisonous on finding (“was The first not supply might an to ordinary person”) contact to normal be sufficient in D. How ruling the defect noted on the instruction our refusal of A the ever, the was because of justified refusing Court in instruction (“if sub you first alternative find that was sensitized to such jury the stance”) prejudicially which would have confused the issue required he sensi was to Plaintiff’s own claim was that “was decide. coming in by tized such that he became sensitized to substance” but long by of de period continuous contact of time with :it over reason tending to negligent handling it. had evidence fendant’s of Plaintiff (On anyone exposure. might show sensitized to it sufficient that be Mass., McKay Co., allergy the matter of Bianchi v. Denholm & see J., 41 Atl. (2d) 697; Stores, 19 N. E. Adam Plat Zirpola v. N. contrary

73.) course, but the trouble Of defendant had evidence to the it authorized a verdict with this alternative in instruction A was that against plaintiff ground on the improper under evidence. in was ruling prejudicial

We reaffirm our no error the trial that excessive, requiring a remit- shown, that the but verdict was $10,000.00. in the amount titur of J., Conhling, Leedy, Tipton, JJ., concur; G.

Hollingsworth, Dalton, separate J., dissents, and in opinion filed; Ellison, dissents in concurs ' separate opinion Gonlcling, G. J. respect CONKLING, (dissenting) C. J. deference with —With I find opinion, that after contrary for the views of who hold those I am unable to study of record and the cases relied on further agree opinion respects. the in two principal refusing in my first the trial court erred to

It is view (that D, you find give Instruction “You instructed that if as follows: are if injuries, from or other and believe the evidence that dermatitis condition, any, plaintiff suffered, physical which was due his own part from,any sensitivity allergy, in or in or and did not whole result your defendant, negligent part act or on then verdict omission ’’ be for the must defendant. opinion correctly principal that there was evidence to The states justify allergy, rules the submission of defense of but further

that D because the refusal of instruction not reversible error was basing D properly defense, instruction such that did not submit (2) ruling May 727, Mo. W. Dept. Arnold v. Stores S. 375, 1. H. Musgrave Mfg. Co., 86 c. v. Great Falls N. my opinion support Atl. cases do 583. It is that those not ruling principal opinion respect. of the in that

In requiring jury addition find as a fact from the evidence plaintiff’s sensitivity allergy, injuries were to his own due instruction D required jury, a basis for for defend- as verdict ant, plaintiff’s injuries did not finding the additional affirmative n wholeor result, part, any negligent from act or on the omission part jury things If was of defendant. found those two defendant case, entitled theory to a verdict. That was of the defendant’s have jury. was entitled submitted to the Inasmuch there testimony jury plaintiff’s in- from which the could have found that juries personal that, I allergy, irrespective resulted from his think plaintiff’s may been, what have evidence otherwise the defendant found, jury jury entitled if to have the instructed that so plaintiff’s result, further injuries did not whole or found that part, defendant, any negligent verdict act or omission ruling agree should be Therefore, for defendant. I do with the *18 principal opinion finding that in as to the this instruction “some * * * necessary.” characteristics would be For of the substance refusing the error in instruction D I reverse and remand would judgment. my judgment appealed It is further if the view even affirmed, upon filing that it should be conditioned of a remittitur $20,000. is no record There evidence sustained any permanent injury disability. or total Plaintiff able to has been performed and has minimize manual labor. has his He refused to damages, earnings. accept and loss He em would offers ployment repairer made to him a car defendant as “which eventually pay pay.” within four cents an hour of his machinist’s He helper. declined defendant’s offer of employment as an electrician’s He employment. has declined other offers of mini If mized damages, places upon duty the law him as an to act ordinarily prudent person consequences to minimize avoidable of his injury, he earnings would not have had the loss in the as stated principal opinion. He has no loss for medical sustained attention hospitalization. my Under these circumstances it is in no view that event should judgment permitted any be stand for ex sum $15,000. cess of