(dissenting).
It is the duty of a master to exercise ordinary care to provide a servant a reasonably safe place in which to work, and the exercise of like care is required to provide reasonably safe appliances with which to perform the work. An employee has the right to assume that his employer has performed his duty with respect to such matters and he does not assume the risk occasioned by a defect attributable to the employer’s negligence in failing to do so until he becomes aware of such defect or unless the resulting hazard is so obvious that an ordinarily careful person in the situation would observe and appreciate the peril, in which circumstances he is presumed in law to know of its existence. He is charged with knowledge of an obvious danger.
The duty is enjoined upon the employer to warn the employee of a hazard caused by performance o£ duty under conditions reasonably calculated to endanger health or life if the danger is unknown to the employee, but is known or through the exercise of ordinary care could be known to the employer. The employer is charged with knowledge of a lurking danger of that character; he must know facts developed through science — medical, chemical, or otherwise — regarding a latent hazard inhering in the work.
Although the question is not free from difficulty, I think the evidence was sufficient to take the case to the jury on the question of negligence in failing to- warn the employee of a latent hazard connected with the employment. Several fellow servants testified that he worked under terrific heat — from 20(> to 250 degrees Fahrenheit — and that gases and fumes were almost invariably noticed in the stills when they were being cleaned. Some said they smelled like sulphur, some like rotten eggs and some like snakes. After cleaners came out of the stills the fillings in their teeth tasted like copper. In addition to that testimony — substantial in quantity and uucontradicted in character — concerning the physical conditions at the stills, Dr. De Barr, a chemist and toxicologist of wide experience, familiar with the chemistry of petroleum, dangerous gases such as hydrogen sulphide, hydrocarbon vapors and carbon monoxide, also with the effect of poisonous vapors ou the human system, testified that sulphur in the form of hydrogen sulphide, organic sulphur and sometimes free sulphur is presen!, in crude petroleum and in the several stages of its refining process; that carbon monoxide,' hydrogen sulphide and petroleum vapors are present in stills of the kind in question; that breathing such fumes and vapors produces detrimental effect to the human body • that hydrogen sulphide is dangerous; that it is toxic from one hundred to one hundred and fifty parts per million, that is to say, about fifteen ten-thousandths to ten ten-thousandths per cent.; that dangerous concentrates of hydrogen sulphide act similarly to chloroform with respect to deadening the sense of smell; that one would not be warned of its presence except for a second or two; tliat hydrocarbon vapors are known to be injurious; that the presence of two or more toxic influences may produce a combined effect greater than their separate effects; that if cleaners observed that fillings in their teeth tasted like metal, that fact would indicate the presence of alkali sulphide or hydrogen sulphide, mostly the latter, in the stills; tha! there is nothing new about the presence of such gases in stills of the kind in question, that they have been known for years and tha' a chemist of average ability should have *46known since 1920 of the presence of such gases; that long continued breathing of a combination of hydrogen sulphide and coke dust is injurious to lung tissues and that he had authority for that statement, obviously meaning opinions by scientists. It may be added here that many chemical analyses made by defendant showed the presence of sulphur in its crude oil being processed.
Dr. Shepard, a graduate of the University of Tennessee with twenty years’ experience in the practice of medicine and a specialist in disorders of the lungs, testified that Grammer was his patient from March 2, 1932, to April 28, 1932, during which period he examined' him several times; that he made a diagnosis of pneumoconiosis. Predicated upon the assumption that Grammer worked in stills for several years and breathed air containing hydrogen sulphide and carbon, it was his opinion that breathing such air destroyed the lung tissues and produced Grammer’s condition ; that the air thus breathed being hot increased its harmful effect; that pneumoconiosis is not a new disease; that it has been known for a long time; that a competent physician with the knowledge possessed by. medical science and knowing the conditions under which Grammer performed his duties should have anticipated since 1921 some abnormal condition of the lungs.
Dr. Summers, a licensed and practicing physician in Tulsa, examined Grammer. He likewise made a diagnosis of pneumoconiosis. He testified that the disease has been known for a long time; that a competent physician with knowledge of the conditions under which Grammer performed his duties and predicated upon the knowledge possessed by medical science should have been able to foretell that such disability and death would result; in other words, that a competent physician knowing the conditions attending Grammer’s work should reasonably have expected that result. He said, among other things:
“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 can be quoted from good authorities about the effect of carbon dust. I believe I can get an authority. I cannot just quote an authority on it, but I believe I can find such a statement. I doubt whether any man ever inhaled any large amount of carbon dust without having some silica.”
Dr. Hurley, a graduate from the Medical Department of Arkansas University with forty-four years’ experience in the practice of medieine, testified that he examined Grammer and diagnosed the case as one of pneumoconiosis; that the disease has been known 'to the medical profession for a long time; that it is produced by breathing irritating dust throughout a long period of time; that air containing silica, iron, copper and emery steel dust is irritating and injurious to the delicate tissues of the lungs; and that, in his opinion, breathing gases along with the fine coke dust encountered in the stills in question would act as such an irritant.
E. D. Murphy, safety engineer of the defendant and active in the work of the National Safety Council, attended meetings of that organization from time to time. He testified that the danger of toxic gases in stills of this kind bad been the subject of discussion at some of the meetings; that he was chairman of the Mid-Continent division of the petroleum section of the council during the year 1928; that he contributed some of the material used in the preparation of a bulletin issued by the organization entitled “Safe Practices in Cleaning Petroleum Stills”; and that he was familiar with the contents of the bulletin. Plaintiff offered the bulletin in evidence. Defendant’s objection thereto was sustained. It contains the following:
“The safety of the men entering a still to clean it is largely dependent, (a) on its having been pumped as dry as possible, (b) on the thoroughness of the steaming to remove all oil vapors, and (e) on adequate ventilation to cool it to a workable temperature and supply clean air for breathing.
“Why? Because the principal hazards involved in any still-cleaning operation are:
“a. Presence of oil which may give off harmful vapors.
“b. Presence of vapors which may explode.
“c. Presence of vapors which may cause asphyxiation.
“d. Temperature which may cause injury to workers or cause prostration.
“e. A fire in area outside still that may trap still cleaners.
“Still cleaners must not guess. If in doubt consult the stillman or some one in authority. Know that conditions are safe.”
Bulletin No. 231, published by the Bureau of Mines, Department of the Interior, in 1925, entitled “Investigation of Toxic Gases from Mexican and other High-Sulphur Petroleums and Products,” produced at the trial *47from the filos of defendant and introduced in evidence, contains the following excerpts:
“In the laboratory study, the symptoms of hydrogen sulphide (H2S) poisoning in animals and men were found to be almost identical with those caused by gases in the refineries. The need for a definite method of treating II2S poisoning was evident.
“Two distinct types of accidents are caused by gases from high-sulphur crudes— asphyxia and irritation. The degree of poisoning ranges from comparatively mild cases to those resulting in death. The cases of asphyxia. were found to be acute poisoning; the eases of conjunctivitis, pharyngitis, and bronchitis were sub-acute.
“In the cases of asphyxia in refineries, the men had been exposed to a gas that caused almost immediate unconsciousness, and some men died before they could be rescued. Other men who were rescued and given treatment, recovered almost immediately,, although a few of them complained of headache and nausea for several hours.
. “Conjunctivitis, pharyngitis, or bronchitis usually occurred after exposure to low concentrations (0.005 to 0.02 per cent) of the-gas for several hours; occasionally, however, they resulted from an exposure of 5 to 10 minutes to a relatively high concentration (0.05 to O.OG per cent) of gas. These symptoms of poisoning may not appear for some hours after exposure.
“Men who had been opening lids of look boxes to get samples in a receiving house for Mexican distillate complained of irritation and inflammation of the eyes, and were treated by the plant physician for conjunctivitis. A small amount of gas escaped from the look boxes.
“A machinist, nine years in service, was repairing a continuous still. Gases from the still blew into bis eyes, and a painful inflammation of both eyes developed. The plant physician treated the eyes with argyrol for conjunctivitis. The man lost no time and felt no further bad effects.
“Men cleaning a tank that had contained Mexican crude-oil distillate but had been steamed and declared safe developed severe conjunctivitis the next day. Some had felt burning pains in the eyes after working several hours. One, who had worked in the tank all night, had an extremely severe case. The cornea was lusterless and pained exceedingly; he suffered marked lacrimation (watering ox the eyes) and photoprobia (light-shyness). He was placed under the care of a specialist, but even with treatment, the exposed part of the cornea desquamated (layers of the eyeball separated) and peeled and for several days the patient was unable to use his eyes. At the end of a week the conjunctivitis cleared up, and his eyes were not permanently affected. The specialist said that the extent of temporary injury seemed out of all proportion to the exposure.
“Five men were working at pressure stills containing Mexican distillate where a leak in the gas line allowed a little gas to escape. The following day the men complained at the dispensary of pains in the chest and a dry cough. The cases were diagnosed as bronchitis. The men did not lose any time, but were under the care of the plant physician for three or four days before all of them were entirely relieved.
“Preliminary studies of the toxicity of HaS indicated that men could not safely be used as experimental subjects, because of possible serious injury to the lungs, and the narrow margin between consciousness and unconsciousness, and the latter and death. Some men were exposed for short periods to II2S in low concentration; however, and the results obtained, considered with the results reported in the work of Lehmann, gave, enough data to predict the reaction of men to liigher concentrations.
“In the experiments on toxicity, canary birds, white rats, guinea pigs, dogs and goats were used. Tho birds were selected because of their extreme susceptibility to poisonous gases, and the goats for their resistance. All were healthy and representative of their kind. The symptoms and pathological changes obtained in animals as a result of exposure to H2S may be assumed to apply also to men.
“The poisoning produced by different concentrations of H2S may be divided into two classes: Acute, resulting in almost instantaneous asphyxia with seeming respiratory paralysis; and subacute, resulting in irritation, principally of tho eyes and the respiratory tract; with irritation followed by depression of the central nervous system. A concentration of II2S a few hundredths of 1 per cent higher than that causing irritation can cause asphyxia.
“This study on toxicity demonstrates that animals of tho types and sizes studied are quite susceptible to HaS poisoning, and that these animals show very similar symptoms. These symptoms are comparable to those in men exposed to low concentrations, and to those reported as occurring in accidents from II2S poisoning in industrial plants.
“Poisoning by II2S is of two types, acute and subacute, respectively, causing asphyxia *48and irritation (conjunctivitis, bronchitis, pharyngitis). Death from asphyxia is caused by paralysis of the respiratory center; death from subacute poisoning is associated with edema of the lungs. The pathology in. sub-acute eases is typical, and indicates destruction of the lining of the lungs and inflammation.”
The bulletin refers specifically to toxic gases contained in so-called high-sulphur petroleum, but it was enough to suggest sharply to defendant the presence of such gases — ■ doubtless in less quantities — in the sweet petroleum which it was engaged in processing in the stills in question and their harmful effect upon employees encountering them:.
It was the duty of tire court in passing upon the motion for a directed verdict to view the evidence in its aspect most favorable to plaintiff. Hampton v. Des Moines & C. I. Ry. Co. (C. C. A.) 65 F.(2d) 899; Kroger Grocery & Baking Co. v. Yount (C. C. A.) 66 F.(2d) 700; Chesapeake & O. Ry. Co. v. Ringstaff (C. C. A.) 67 F.(2d) 482; Laughlin v. Chesapeake & O. Ry. Co. (C. C. A.) 68 F.(2d) 242.
It is my conclusion that when thus viewed, the evidence was sufficient to establish prima facie the existence of a latent danger inherent in the employment. That danger did not consist in merely breathing air containing carbon dust. As stated by the majority, inhaling carbon dust alone may not be harmful. The hazard consisted in breathing air filled with carbon dust laden with gases. It was that combination of elements which created the danger. The evidence was enough to show that scientists had known of that danger for many years. Graanmer did not. He worked for more than ten years in its presence without being warned of its existence. Death resulted. Defendant was eharg'ed in law with knowledge of the hazard since the elements constituting it were known scientific facts. Failure to warn in such circumstances constitutes actionable negligence. Wagner v. 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; Green v. Standard W. P. & A. W. (D. C.) 29 F.(2d) 746; Kane v. Federal Match Corp. (D. C.) 5 F. Supp. 507; Louisville & N. R. Co. v. Wright, 183 Ky. 634, 210 S. W. 184, 4 A. L. R. 478; Collins v. Pecos & N. T. R. Co., 110 Tex. 577, 212 S. W. 477, 222 S. W. 156; Chicago, R. & I. P. Ry. Co. v. Cheek, 105 Okl. 91, 231 P. 1078. In such circumstances, defendant should not be heard to say that it did not know of the danger. The evidence likewise was adequate, if believed, to enable the jury to determine the proximate cause of the employee’s death without resort to speculation. The motion for a directed verdict should have been overruled. Entertaining these views, I must be content to occupy the domain of dissent.