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Question. That refers to the silica dust?

Answer. Yes, sir. Less than five, and especially less than one-half of a micron in diameter. You can see with the highest-powered, the best, microscope dust as fine as about one-half micron. When one particle is there you might be able to see it in bright light when it is perhaps one-tenth micron in size, so that the dusts doing the most damage are those that are so fine they can't be seen.

Question. Go ahead and give the various conditions.

Answer. I may state possibly they are able to be seen under one condition. If you get them in a dark place and take a powerful beam of light and shoot it through it, then you can see the waves of those practically colloidal or at least aerosol sizes of dust. You couldn't identify any particular particle. They are like smoke.

Question. Doctor, I wish you would resume your original thought where you were giving the different conditions that influenced the time of exposure necessary to contract the disease.

Answer. Well, naturally, whether the dust is wet or dry is a great factor. Wet silica dust has been found to keep it out of the way to the extent of 90 to 95 percent. Even at that, silicosis may follow; or say, 5 or 10 percent may be enough under the conditions to produce it. If it is not, a man breathes more deeply, and therefore inhales more silica dust. If it is long hours, and especially the last 2 or 3 hours, the hazard becomes much greater. It may be theoretically possible for a man to work 6 hours in a fairly dangerous silica dust and not develop silicosis, but to add another hour or 2 hours or 4 hours or 6 hours to build up silicosis rapidly. If a man works steadily day in and day out, no holidays, no Sundays, no half-days, it piles up very much faster. The disease comes on sooner.

Question. What about the presence of pure, fresh air?

Answer. If the air is impurethat is, not rich enough in oxygen—the man breathes more deeply and naturally takes in more dust. If the air contains poisonous gases that tend to displace part of the oxygen of the air, naturally the man has to breathe more to get the amount of oxygen he needs, so he takes in more dust.

Question. Right on that point, let me ask you, What about the discharge of gasoline fumes in an underground tunnel without sufficient ventilation ?

Judge LEE. We obey.
Mr. BACON. What would be the effect of that?
The WITNESS. That is, you mean the fumes are not cut-
Mr. BACON. Let the court rule.

The Court. You use the expression "without sufficient ventilation.” I think I will sustain the objection,

Mr. BACON. I think our testimony shows—of course, the other side contends, I reckon, that they had plenty of ventilation, but I don't think I have to include their theory in this question. The COURT. I think "poor ventilation” would be better.

Mr. BACON. Well, I will substitute the word "poor" ventilation instead of "sufficient.”

Judge LEE. We object to it in the amended form.

The COURT. The objection is overruled. The witness may answer in this form.

The WITNESS. If the ventilation in the presence of gasoline-exhaust fumes or motor-exhaust fumes is so poor that you can smell it, it increases the hazard, because one has to breathe deeper to get his oxygen. He has to breathe deeper to get his oxygen because of the presence in these gases of carbon dioxide in large quantities and carbon monoxide in smaller quantities.

Mr. BACON. What about the fumes arising from the use of 60-percent dynamite in the same kind of ventilation-poor ventilation?

Judge LEE. We object.
The COURT. Read that question back.
(The question was read by the official reporter.)

Mr. Bacon. In such quantities—I want to add to that—as would be generated by the use of from seven to eight hundred pounds of 60-percent dynamite at one series of two to three shots within 45 minutes.

Judge LEE. Objection to the question as amended.
The COURT. What is the last part of that?
(The question was read.)
The Court. The objection is overruled. You may answer that.
The WITNESS. If that is in a confined space-

Mr. BACON. I should have said "in an underground tunnel.”

The WITNESS. That would constitute a definite hazard, both to the man immediately and from the gases produced, and to the silicosis process, for the same reasons I have named before-he would have to breathe more to get his air.

Mr. BACON. What about the effect of combining both the gases generated by the dynamite and the gas fumes ?

Judge LEE. We object.
The COURT. You may answer. The objection is overruled.
The WITNESS. It would increase the hazard.

By Mr. BACON :
Question. Doctor, do you know Raymond Johnson, the plaintiff?
Answer. Yes, sir.

Question. Before I go into that phase of the case, mark that out, Ben; I will change that.

State whether or not the effect of silica dust upon the lung is in the nature of a trauma, mechanical or physical injury.

Answer. It is not mechanical or physical injury, for the reasons I have already detailed in how it produces silicosis. It is a chemical injury.

Question. What would you say, Doctor, with reference to physical examination of employees who are engaged in excavating a tunnel which is through a sandstone containing from 98 to 99 percent pure silica, that tunnel being underground and from 32 to 46 feet in diameter, and approximately 16,250 feet in length, about 11,000 feet of which is through this silica or sandstone rock?

Judge LEE. We object.

The Court. I think I will have to sustain the objection to this question. In effect, it would be asking this witness his opinion as to whether the situation that you have outlined in your question constituted negligence. That is a question for the jury.

Mr. BACON. I will change it a little bit. What is the importance or need of a physical examination of persons engaged in occupations, industrial occupations, which have to do with handling of sandstone containing from 98 to 99 percent silica ?

Judge LEE. To which we object.

The Court. Well, the witness may answer this question. The objection is overruled.

The WITNESS. Such workers ought to have a physical examination before they are employed, particularly of the heart and lungs, upper respiratory passageways. They ought to have a physical examination at intervals during employment; whenever, for instance, they are off on account of disability, they should not be allowed to go back until they have been physically examined to see if that disability had anything to do with the work, and I would think once a year would be a proper time for having them all reexamined.

Mr. COUCH. We move to strike that.
Judge LEE. And instruct the jury not to consider it.

The COURT. I don't know but what we have got in the very thing I thought probably would be improper when I sustained the objection to the former question. I think you have a right, maybe, to prove what is the approved custom in that regard among people who are engaged in similar work in this locality. That is not the object of this question. I believe I will direct the jury not to consider the answer made by the witness to that question. The jury are instructed not to consider the answer made by the witness to that last question.

Mr. BACON. Do you know what the custom is among the employers of labor in industrial hazards with reference to examining their employees before they are put to work, and during the period in which they are at it?

Judge LEE. We object. The question is too general, as I see it. It does not apply to this particular class of work in this particular section.

Mr. Bacon. Industrial hazards he said. That is what I am asking him about.

Mr. Couch. The question is, What is done in this locality?

The Court. I think you may as well pass this up. You haven't got it before the jury, and the jury can pass upon the question whether there was any duty on the defendant to have its employees examined.

By Mr. BACON: Question. I believe you said that you knew Raymond Johnson. When did you first meet him, Doctor?

Answer. Day before yesterday.
Question. Did you make any physical examination of him?
Answer. I did.
Question. Have you seen an X-ray picture made of his chest?
Answer. I have.
Question. Have you examined that X-ray picture?
Answer. Yes, sir.

Question. How many X-ray pictures have you seen of Raymond Johnson's chest?

Answer. Three.

Question. Did you receive information as to when these X-ray pictures were made?

Answer. I did.

Question. According to that information, were they made at the same or different times?

Answer. They were made at different times.

Question. Would the fact that they were made at different times have any greater evidential weight in determining the diagnosis of his trouble than if made at one time?

Answer. It does.
Question. State the reason for that.
Judge LEE. I think he has already gone over that.
The COURT. Well, go ahead. The objection is overruled.

The WITNESS. It is preferable to have X-ray pictures taken at intervals, so that the progress of the disease can be followed in the X-ray. It is the recommended procedure, if possible to do it. Many times there is no question about one X-ray, particularly after the disease has got into the first stage. After that it is only of interest to show the progress of the disease.

By Mr. BACON: Question. Doctor, I want to ask you to detail to the jury your physical findings when you made an examination of Raymond Johnson.

Answer. I think I have some notes here. It seems to have disappeared. I can recall them off-hand quite accurately. I though if I could see my notes it would be a little more rapid, perhaps. I found Raymond Johnson to have a normal temperature. It was just 99. His pulse was 90 at rest. His pulse increased to about 130 on some exercise, jumping up and down, but returned to 90 in 3 minutes, which is about normal. Of course, his pulse of 90 in the first place is too high. His blood pressure was 110, which I note from the evidence given by Dr. Harless yesterday when he first saw the patient as 102, would indicate that he has had an increase in blood pressure of 8 points in this interval. His pulse was even on both sides of his body. His general appearance was that of a semiemaciated individual, particularly in the chest region. Informed that he had weighed about 175 to 180 pounds, it is perfectly obvious from looking at his trunk, chest, arms, that he did not weigh that much at the present time. His wasting shows his ribs and the spaces between his ribs quite plainly—of course, with the skin over them. It showed the collarbone quite prominently; showed the scapula or shoulderblade quite prominently from the rear. The wasting was more in front than on his back. His respiration was about 25 to 28. I took that without his knowing that I was counting his rate of respiration, which normally should be about 16 to 17 per minute. After exercising, his respiration increased rapidly, but subsided in 4 or 5 minutes. I asked him to hold his breath, which is a very valuable test of a man's breathing capacity, of the strength of his heart, and the integrity of his nervous system, and I first had him hold it 10 seconds. He did that well; I then had him hold it 20 seconds. He did that with some difficulty. I held my own breath at the same time, the same length of time. I did not ask him to hold it for any longer periods, because I did not want to discomfort him. But, normally, an individual should be able to hold his breath, even out of practice that is, out of physical work—that is, a desk person–40 seconds.

So I noted that his breathing capacity was considerably reduced. I measured his expansion across the nipple line. It was 35 inches at complete expiration, and it went to 3712, to perhaps 3734, or 234-inches expansion, when he ex


panded, showing that he had a pretty fair expansion, but where the average should be 312 inches for the average individual, and I would expect more in a laboring man like he. It was, of course, being 2.75 or two and three-quarter inches, decreased. Tapping his chest, percussion, as we call it, did not develop the normal sounds that one should hear in the chest. It was not resonant enough, drumlike enough. In certain areas, for instance, on each side of the breastbone, and somewhat on each side of the backbone, it was a little too resonant, showing that there was present a cavity, due to air in there some place in those regions. The rest of the whole lungs were very much alike, a little too dull, not resonant enough. I put my hands on both sides of his chest and asked him to repeat figures, like 1, 2, 3, so that I could feel any jiggle or fremitus, as it is called, as a consequence of that, and a little of that is normal; but I found that his was increased. An increase in that jiggle sensation that you get in your hands implies consolidation in his lungs.

I listened to his chest with a stethoscope all over his chest. I particularly listened for evidences of any localization of symptoms which might point out tuberculosis, and I couldn't find such. After having him make a voluntary cough two or three times and taking a deep breath, I tested that way, and in one place just below his clavicle I got what we call a little sibilant rale. However, that would not be abnormal. I presume I might go over this room and find it in a good many persons here, and it would mean nothing. I couldn't find the normal sounds a person ought to hear over the lungs. They were distant, they were far apart, they were reduced. I listened to his heart. It was going at a rate of about 90, as the pulse had been going, and there were no

The valves seemed to close well. The apex was a little out, a little too far over, implying that either the heart was somewhat enlarged or else it was displaced toward the left. It did not seem, however, to be a factor in discommoding him or disturbing him. That agreed with the previous tests of having him exercise for awhile to see how quickly his heart would bring things back to normal. I examined his abdomen, noting it was rather flat-only examined the upper portion of it. It seemed normal. I tested his knee reflexes. I found them a little livelier than usual when you tapped on the knee. were alike on both sides. I was impressed with his nervous control. He did not seem—he said that he was nervous at times, and so forth. He did not appear to be so at that time. I watched him for perhaps a half an hour or 40 minutes. I did not hear him cough during that whole period. I watched him in court here yesterday for about 4 hours. I think I only saw him cough very lightly—he did not raise anything—once or twice, possibly twice. That is important in diagnosis.

Question. In what way is that important?

Answer. It is an indication he has not an active stage, at least, of tuberculosis. I noticed that his complexion looked pretty good in his face last night, and today, too. His pupils were normal in their dimensions. I did not test the pupillary reflexes. There did not seem to be any indication, I saw that he could move all parts of his chest and upper arms, and so forth. As the result of that physical examination all I could say was that he had some evenly distributed dullness in both lungs, with some emphysema, but air loose in the tissues in along the chestbone in each side, and the front aspect of the lungs, and perhaps a little in the corresponding position along the backbone on each side.

Question. Doctor, I want to ask you a rather lengthy question. Assuming that Raymond Johnson, the plaintiff, is 37 years of age and that he worked in the coal mines at Gamoca and other places for 20 years or more prior to October 1930 as a coal loader, that he never worked in or about any rock dust prior to said last-mentioned date; that prior to said date he had good health and was able to load more coal than the average coal loader, that he worked rugularly and had never been sick, and that his average weight prior to said date was between 175 and 180 pounds, and was on said lastmentioned date and had been previous thereto in good health; that on or about the blank day of October 1930 he began working for Rinehart & Dennis Co. in the West End, or in project no 1 of said tunnel, in an underground tunnel about 16,250 feet in length, of an average diameter of from 32 to 46 feet; that said project no. 1 of said tunnel was driven a distance of approximately 4,350 feet underground and through solid rock which contained from 98 to 99 percent silica; that the work in said project was divided into two shifts of 10 hours each, and that from 60 to 70 men worked inside said tunnel near and in the heading on each shift; that the said Johnson worked in said project no. 1 from the blank day of October 1930 to the blank day of January 1932, with the exception of about 1 month; that he worked 4 or 5 months as a steel nipper, a short time as a muck foreman, and the remainder of the time as a driller and drill mechanic; that he usually worked the full 10-hour shift, but occasionally got off earlier while he was working as a steel nipper; that during all of the time he worked he, together with the other employees, were in a rush and worked intensively; that there were from 110 to 120 holes drilled in the heading on the benches in said tunnel during each shift, these holes ranging from 2 to 4 feet deep in the toe, from 8 to 12 feet in the benches, and 10 to 12 feet in the heading, and that none of the drills had dust traps on them, and only the drills which operated in the heading used water; that the holes drilled in the benches and in the toe were about 2 inches in diameter at the top, and sloped to about 1 inch at the bottom; that after the said holes were drilled they were loaded with 60 percent dynamite, each loading requiring from 600 to 800 pounds; that after the holes were loaded they were usually shot in the following order-the toe and first bench shot together, the second bench next, and the heading next, and sometimes the upper bench and heading shot together, making only two shots, which usually required from 45 minutes to 1 hour to fire all the shots; that after these shots were fired a group of men called muckers would throw the rock from the upper benches down to the toe so that the same could be loaded by an electric shovel into cars to be hauled outside; that the drills or jack hammers which did the drilling were operated by compressed air which was run through a manifold containing lubricating oil, the air being delivered through a 6-inch pipe from a compressor on the outside of said tunnel about 200 or 300 feet from the heading; that there was no sprinkling of the walls of the tunnel or of the rock after it was shot down; that the use of the dry drills, electric shovel, the mucking, and the blasting of the rock produced great quantities of silica dust which was continuously liberated in the tunnel; and that great quantities of said dust remained suspended at all times in said tunnel, and particularly in the heading thereof where the men were working, except on Monday mornings, said tunnel was reasonably free of dust for a few hours until the bench drills had been in operation for a short time; that for the greater part of the time the dust was so thick that a man working in said tunnel could only see a man to distinguish him from 10 to 20 feet.

Assuming further that there were two gasoline motors, one 16-ton motor and another smaller motor which consumed approximately 50 to 60 gallons of gasoline each shift, operated in said tunnel and a portion of the time at and near the heading thereof and between the end of the vent tube and the face of the rock; that the odor from the fumes of said motors could be smelled by the men working in said tunnel practically all the time during each shift; that on many occasions the employees of said company would be required to rush back into their working places immediately after the shots were fired, and on such occasions the dust and smoke arising from the shots would be so heavy that a person could be seen only 8 to 10 feet away, and that this condition would last from 2 to 3 hours after the shots were fired; that the fumes from said shots would continue in the heading of said tunnel the greater part of the shift.

Assuming further that the only means of ventilation in said tunnel was through a 24-inch canvas vent tube in 50-foot sections, which extended from 30 to 50 feet from outside the tunnel to from 400 to 50 feet from the heading, at the end of which tube was an 18-inch direct drive fan, and such additional air as might be liberated in said tunnel through the air hose attached to the drills while drilling; and

Assuming further that the said vent tube had several holes in its extending from near the inner end to back near the portal; and

Assuming further that the men working in the heading in said tunnel were unable to feel or detect any current of fresh air from said vent tube and could feel the same only when they got within from 6 to 12 feet of the same; and

Assuming further that the dust in the heading where the said Johnson worked the dust from the drills, dynamite, and loading in and near the heading was so thick a man could only recognize a man from 10 to 20 feet away, and that the dust would settle on the edges of his hair, eyebrows, nose, face, and clothing of the said Johnson and the other men until their hair, eyebrows, faces, and noses and clothing were white and thick with dust which remained on them throughout the entire shift; and

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