concurring and dissenting.
I dissent most vigorously from the two principal conclusions reached in the majority opinion. If allowed to stand as accepted interpretations of federal law, said conclusions would go a long way toward effectively undermining the Federal Employers’ Liability Act (FELA) and the salutary purposes which Congress had in mind when they passed this landmark legislation. In Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443,1 L.Ed.2d 493, reh. denied, 353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764 (1957), Mr. Justice Brennan described the practical consequences of this statute, which had a far-reaching effect, historically, in advancing the right of working people to justice and fair dealing, as follows:
Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employ*109ee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due “in whole or in part ” to its negligence. (Emphasis added.)
The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the’ jury mayi with reason make that inference.
352 U.S. at 506-8, 77 S.Ct. at 448-9 (footnotes omitted).
See also, Heater v. Chesapeake & Ohio Railway Co., 497 F.2d 1243 (7th Cir.), cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 287 (1974).
In light of these principles, the majority’s first conclusion, that the trial court should not have withdrawn the issue of foreseeability from the jury and held that the injury to Appellee Dale was foreseeable as a matter of law, is simply wrong. The trial court determination of this issue was as follows:
In order for liability to attach to the B & 0 [Appellant] it was incumbent upon Dale to establish that the B & 0 had *110a duty to protect Dale from dangers due to asbestos exposure; however, before this duty could arise it was necessary to demonstrate that the B & 0 knew or should have known of the hazards to health from exposure to asbestos dust during the period of Dale’s exposure, i.e., 1944-1955. Dale, in order to show that the B & 0 knew or should have known such hazard, presented as a witness one Dr. David Keith Parkinson to show the state of the art during the relevant period and the B & 0 presented one Dr. H. Corwin Hinshaw for the same purpose. Dr. Parkinson’s testimony, if believed, was that the state of the art established that health hazards from asbestos exposure were known during the relevant period; Dr. Hinshaw’s testimony was that, while he agreed that the state of the art as to those persons who were directly exposed to raw asbestos, i.e., miners and makers of asbestos-containing products, established that they were at hazard, his opinion concerning the state of the art as to railroad workers was that they were not at risk when using asbestos-containing products.
If the conflicting testimony of Dr. Parkinson and Dr. Hinshaw was the only testimony to establish what B & 0 knew or should have known of the hazards from asbestos-exposure during the period 1944-1955, there is no question that the issue should have been submitted to the jury for resolution. However, Dale presented exhibits 7 through 18 which were minutes of the Medical and Surgical Section of the American Association of Railroads, of which the B & 0 was a member. The medical officer of the B & 0, one Dr. E.Y. Milholland, was a member of the Medical and Surgical Section and attended the meetings; additionally, Daniel Willard president of the B & 0 during part of the relevant period was also a member of the board of directors of the American Association of Railroads.
Based upon the foregoing exhibits, which the B & 0 admitted to being authenic and which were admitted into evidence without objection, the trial court, when charging the jury, instructed the jury that as a matter of law the B *111& 0 knew or should have known of the hazard to health from exposure to asbestos from which it owed a duty to protect its workers when the circumstances required, from the health hazards which could result from exposure to dust of asbestos.
The B & 0 had not presented any evidence in rebuttal to Dale’s evidence that the workplace during the relevant period was filled with asbestos dust and that no form of protection was either provided against preventing the asbestos dust from entering the air in the workplace or from inhaling the same. The B & O’s sole defense to liability was that the state of the art during the relevant period did not consider railroad workers to be at risk from exposure to asbestos dust. Thus, if the jury believed Dr. Hinshaw, it could find that the B & 0 owed no duty to its workers. Since negligence requires four factors to establish liability and recovery therefore, i.e., (1) a duty owed, (2) breach of that duty, (3) injury proximately caused by the breach of duty, and (4) damages, ... and there being no duty owed by the B & 0 to Dale, B & 0 would not be liable to Dale for his claimed injuries.
On the other hand exhibits 7 through 18 were documentary which the B & 0 admitted was (sic) authentic. The contents of the exhibits were not questioned by the B & 0 and there was no issue of credibility to be determined in any respect regarding the said exhibits.
Since the relationship between the B & 0 and Dale during the relevant period was that of employer-employee the scope of the B & O’s duty was thus limited to those risks in the workplace that were reasonably foreseeable by it or those risks about which it knew or should have known about.
During the relevant period of time the B & 0 knew that its steam locomotive engines were insulated with asbestos-containing material; it also knew that its employees, of which Dale was one, in the repair and maintenance of its steam locomotives worked with asbestos-containing *112material. Exhibits 7 through 18 clearly establish that the B & 0, during the relevant period, learned that dust may be a hazard to health, producing pathology; that dust pathology may occur in any occupation where dust is produced and inhaled in sufficient quantities over a long enough period of time, that pulmonary disorders were especially prevalent in employees engaged in dusty occupations; that all pathology caused by inhalation of dust is known as pneumoconiosis; that pneumoconiosis is a condition that may be caused by any kind of dust entering the lung; that a committee of the Medical and Surgical Section of the American Association of Railroads defined and described the condition of pneumoconiosis, or dust disease of the lungs and mentioned silicosis and asbestos as forms of the diseases most interesting to railroad surgeons.
The fact that B & 0 was aware of lung pathology being caused by inhalation of any kind of dust was sufficient to impose a duty on the B & 0 to protect against the hazards of dust____
The circumstances of this case and the relationship of the parties, as hereinabove set forth, not only establish during the relevant period of time, that it was reasonably foreseeable that there was a risk to the health of B & O’s employees, such as Dale, who worked in an environment of dust, but also that B & 0 had knowledge that, one of the dust diseases of the lungs was asbestosis. Thus, a duty arose and was cast on the B & 0 to protect Dale from the risk of inhalation of dust generally, and particularly the inhalation of dust from asbestos-containing products. (Trial court opinion at pp. 6-11).
To complete the trial court’s logical demonstration, the uncontradicted exhibits show that the B & 0 was aware of the dangers here — those dangers to workers’ health were foreseeable as a matter of law. If the dangers were foreseeable, that gave rise to a duty imposed on the B & 0 to protect their workers from such dangers. Whether the B & 0 negligently breached that duty is, of course, usually *113a jury question under the FELA. But foreseeability was clearly established here as a matter of law and that issue was properly withdrawn from the jury. The FELA gives employees the benefit of doubt and requires submission of the issue of negligence to the jury even where the employee produces only slight evidence of negligence. The FELA does not require other issues that are clearly established in favor of an employee beyond any shadow of doubt to be submitted to a jury regardless. That kind of result, as reached today by the majority, turns the FELA into an employer protection act and it is a conclusion which I cannot countenance.
The Court’s second conclusion is also in error. Section 3 of the FELA, 45 U.S.C. § 53, does indeed provide that an employer’s damages (but not its liability) shall be diminished by the employee’s contributory negligence. Section 53 says absolutely nothing, however, to suggest that where other factors contributed to an employee’s injuries, that an employer’s damages can or should be reduced on that account. See, Farmer v. Pennsylvania Railroad Co., 311 F.Supp. 1074 (D.C., W.D.Pa., 1970). To so hold seems to me directly contrary to the language and spirit of Rogers, quoted supra. On the contrary, where an employer railroad’s negligence causes, in whole or in part, an injury to their employee, they are liable for the entire amount of damages, and there is no provision in the FELA for reduction of damages for innocent causes which concur with a defendant’s negligence in causing an injury. See, Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), Rogers v. Missouri Pacific R. Co., supra; Farmer v. Pennsylvania Railroad Co., supra; Fleming v. Husted, 164 F.2d 65 (8th Cir., 1947); Restatement, Second, Torts § 433A, comment a. To hold that an employer’s damages may be reduced under the instant circumstances seems to me to be directly contrary to the language and spirit of Rogers, quoted supra. The pro-labor policies of the Act will be insensibly undermined by the unprecedented anti-worker holding of the majority. Simply put, the rule is and ought to be thuswise: the employer as *114tortfeasor under this Act must take its victim as it finds him. See also, Holladay v. Chicago B. & Q.R.R. Co., 255 F.Supp. 879 (D.C., S.D.Iowa, 1966).
While I agree that the award of delay damages must be reversed, I would otherwise affirm the decision of the Superior Court.
LARSEN, J., joins in this concurring and dissenting opinion.