
    Arthur Berry, Appellant, v. The Atlantic White Lead and Linseed Oil Company, Respondents.
    
      Employment in a white lead factory—when the employee assumes the risks.
    
    A person employed in a white lead factory takes the risk incident to the employment.
    Where the common knowledge of men and a constant opportunity to see the precautions which were observed in the factory, some of which the employee was directed to observe, the sickness of workmen and the notice that there was danger from lead dust, showed that he possessed knowledge of the conditions and consequences of his employment, the fact that, during the course of such employment, he was stricken with paralysis gives him no right of action against his employer.
    The fact that only two cases can be found in the records of the State in which an action has been brought upon such ground offers a strong presumption that actions of this character are not maintainable.
    Appeal by the plaintiff, Arthur Berry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of March, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      James P. Judge, for the appellant.
    
      Charles B. Alexander, for the respondent.
   Goodrich, P. J.:

The complaint alleges that the defendant corporation was engaged in the business of manufacturing white lead, in the city of Brooklyn in the year 1890, and that such business and the process and ingredients therein used are. dangerous to the life. and health of all who .are employed therein or in the 'factory where the business is carried on ; that the plaintiff was employed by the defendant as an assistant engineer or machinist in the factory ; that the defendant, knowing the danger of such employment, failed to inform thé plaintiff thereof, but, on the contrary, informed- him that there was no danger or hazard to health from being thus employed in the business; that the plaintiff was ignorant of any such dangerous effects, and being ■employed in the factory that “ his system and body became thoroughly permeated, impregnated and saturated with lead poisoning •and other paint poisons peculiar to the business of manufacturing .and handling paints, whereby he was and-is affected, and has and yet suffers from lead poisoning and its concomitants, and has suffered, and continues to suffer, great bodily pains and -anguish, and lias been and is still incapacitated, * * * and that he believes . "that he is permanently disabled from working.”

The defendant, in its answer, denies that the business carried on by it, and the process and ingredients used therein, are dangerous to the life and health of ail who are employed therein, or in the factory •or premises in which such business is carried on, but upon information and belief admits that persons susceptible by nature thereto are, in certain branches and departments of such business, exposed to the -danger of lead poisoning, so-called, which- .danger is a -well-known and recognized risk incident to employment in the business of the manufacture of white lead.”

The answer also denies that the defendant informed the plaintiff •that there was no danger or hazard* or that there was any negligence or disregard of defendant’s duty to the plaintiff.

It appears that in July, 1889, the plaintiff’s employment commenced, and that it continued until July, 1890, when he was suddenly stricken with paralysis. In the course of his employment the ■plaintiff was called upon to do work in all parts of the factory, which was a structure covering two and one-half city blocks, and in which were employed 400 or 500 people. Both parties admit the dangerous character of the employment. Sponges and handkerchiefs are furnished by the defendant for the use of the men.

The plaintiff testified : “ I don’t remember ever seeing any workmen with handkerchiefs over their noses or sponges over their mouths. I do not mean to say that I never saw any workmen there with sponges in their mouths, or over their mouths; I don’t remember ever seeing them. I won’t state that I never did, but swear that I don’t remember anything about it; as far as that was concerned I don’t remember "ever seeing them.” He further testified that he heard the workmen speak of a lead colic after he had been there some time; that the chief engineer told him, “ Harry, look out for the.dust, or you will get a buckle in your stomach; ” that he had been in the factory nine months before he heard the subject of lead colic spoken of by the officers ; that after he had been there several months he heard that there was danger, and noticed that there were several cripples there, among them the engineer, who had a crippled hand, and that he was told by him that he thought it was an affection of the lead —■ wrist drop; * * * . he told me it was lead affliction.”

Larwill, the defendant’s.chief engineer, testified that he told the plaintiff “ to be. very careful, and wash himself carefully and use Pearline, as it was a better solvent than soap to wash lead off, and be particularly careful to wash the lead dust from his moustache if anywhere around the month, and whenever he got a sweet taste in his mouth to wash his mouth out. * * * By the Court: Q. What did you ever say to him ? A. I told him to be careful about getting lead in his mouth, because if he swallowed it it would give him the belly ache, and particularly to" be careful about getting lead in under his finger nails, and also to avoid getting anything in his month, and it has been my custom to mention to them — * ■ * 'x' I remember saying that if you find you have got the belly ache look at your gums and see if there are blue lines on them, and if there are you had better get some iodidé of potash, as soon as you can, but I am not allowed to prescribe for you, you better go and see your own doctor,’ that is the gist of the thing, it may not be the words.” He also testified that men were made more or less sick ” every week.

It will be observed that the plaintiff simply denies that he has memory of this notice, but admits that he used Pearline, to wash with; yet he was not recalled to deny the testimony of the engineer. It is difficult to believe, upon these undisputed facts, with the common knowledge of the danger of lead poisoning, that a workman of ordinary intelligence, employed in a paint factory and having access and occasion to go to all ¡Darts of it, could have been ignorant of the f requent sickness of the workmen or of the use of sponges and hand- . kerchiefs or of the precautions taken by the workmen to avoid inhalation of or contact with particles of lead. This i§, not a case of a workman going amid dangers in respect to which lie had no knowledge or instruction and being suddenly injured by some unexpected ' accident. ■

The common-knowledge of men and a constant opportunity to see the precautions which were observed in the factory, some of which he was directed to observe, the sickness of workmen and the notice that there was danger from lead dust, - which the plaintiff does not . deny, must control us in the decision of this case. In Crown v. Orr (140 N. Y. 450, 452-453) it was held : “The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to- such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers -incident to the employment or arising in the course of the business of which lie has knowledge or the means of knowledge. If he voluntarily enters into, or continues in the service .without objection or complaint, having knowledge or the méans. of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the. master in case of personal injury to him.” - (Citing cases.) “ This principle applies to the plaintiff, though lie Avas not at the time of full age. Like any other servant ■ he took upon himself the ordinary risks of the service, and all dangers from the use of machinery which were known to him, or obvious to ¡Dersons of ordinary intelligence.” (Citing cases.)' “He is bound to take notice of' the ordinary operation of familiar laws and to govern- himself accordingly, and if he- fails to do so the risk is his own. He is bound to Use his eyes to see that which is open and apparent to any person so using them, and if he neglects to do so he cannot charge the consequences upon the master.”

In Gates v. State of New York (128 N. Y. 221), cited by plaintiff’s counsel, the principle is recognized that in work of an inherently dangerous nature the workman is ordinarily held to assume that certain risk Avhich must attend upon its execution, and that such knowledge may be presumed to be possessed by reason of previous employment, or to be suggested by ordinary observation and appearances.

There is no sufficient evidence in this case to justify the assumption that paralysis is a necessary concomitant of working in a lead factory. It is not true that all employees in paint factories are attacked with paralysis. It is not- true even that all .of them are subject to lead colic. Some persons are more susceptible to this latter trouble than are others, and some are not at all affected. This may possibly depend upon the precautions taken by some of them to protect themselves from inhalation or contact with poisonous substances. But it is a well-knoAvn fact of common knowledge that even a freshly-painted room causes unpleasant results to some persons occupying it. .It cannot be assumed that because one person is subject to this trouble all others Avill be, nor. can any liability of the defendant in this action be predicated simply upon the fact that the plaintiff’s paralysis resulted from lead poisoning.

There is no evidence to show that any other person in the factory was thus injured, although it is true that some of them were more or less affected. The plaintiff, in entering the employment of the defendant, an employment- concededly dangerous, took the risk incident thereto, and had no right of recovery against the defendant. In the unreported case of Lundstrom v. The Atlantic White Lead & Linseed Oil Company, Mr. Justice Bartlett dismissed the complaint, using the following language: Furthermore, I am induced to dismiss the complaint by two other considerations. The first is that this plaintiff is a man of more than ordinary intelligence, as the position which he at once, or very early, acquired in the employment of the defendant indicates, and he is, therefore, a person to whom the rule peculiarly applies, that the servant assumes all the risks ordinarily incident to the employment. It might be different if lie were a man of great ignorance, or if the case was one of a child pr a person of such tender age . that he could not be expected to have the knowledge which this man shows that he possesses. In the second place it is impossible for me to resist the conclusion that what this plaintiff says himself he saw in that factory must have impressed his mind with the idea that he was incurring constant danger, even if he did not know it at the outset. The plaintiff himself says, according to my notes, that he was taken ill about a week after . he went 'there ; that other workmen told, him they were sick, and that he saw these men going about there with sponges over.their mouths and other appliances evidently used for some purpose connected with their work. How he could have seen all this and not have been put upon inquiry, at least as to the existence of "danger, it is really difficult for me to conceive.”

We think that this decision fairly summarizes the rights and liabilities of the parties. It may further be observed that, with the excep-' tion of another and similar case tried before Mr. Justice Cullen (the nnreported case of Farrell v. The Union White Lead Manufacturing Company), where the complaint was dismissed, no similar action can be found in the reports of this State. It does not conflict violently with our judicial experience and observation, that wherever an' accident has occurred, willing counsel have been at hand ready to take up the burden of prosecuting actions for the recovery of damages, wherever it was believed there were reasonable chances for a substantial and compensatory verdict; That only two cases similar to the one at bar can be found of record in this State, is not, indeed, controlling, but it affords' strong presumption of a consensus of opinion that actions of this character, are not ■ maintainable. Certainly, it agrees with our views of the defendant’s responsibility. ' •

The complaint was properly dismissed, iand the judgment must be affirmed.

All concurred-,.except Bartlett, J., absent.

Judgment unanimously affirmed, with costs.  