Assuming further that, about 6 months after Johnson quit working in said tunnel, he began to lose weight and there was shortness of breath and severe pains and hurting in the chest, and that he has gradually lost weight until he weighs now only about 143 pounds, and that he is at this time short of breath, has pains in his chest and that he has been growing continuously worse, and taking into consideration your physical examination made of the said Johnson and your examination of the X-ray pictures made of his chest, state whether in your opinion Raymond Johnson is suffering from any disease, and, if so, what? Mr. LEE. We object to that.

The COURT. My idea is there is a good bit in there that is really unnecessary. My understanding is, this witness made a physical examination of this man and has also seen two or three X-rays. However, you may answer the question. The objection is overruled.

Answer. He is suffering from a disease of the lungs, and that disease is silicosis.

By Mr. BACON :

Question. Did you, in addition to what I have read to you, also hear Mr. Johnson's testimony on the witness stand?

Answer. I did.

Question. Did you hear all of it?

Answer. I think so.

Question. Doctor, are you able to state, from your examination and from the examination of the X-ray pictures of Mr. Johnson, just in what stage of the disease he is now?

Answer. Conservatively, he is in the late second; possibly he is in the third, early third stage.

Question. What is the probable prognosis of Mr. Johnson, assuming there will be no complications set in?

Mr. DILLON. Objection to that.

The COURT. Objection overruled. You may answer it.

Answer. His prospects are bad for continued health, and even for continued longevity.

Mr. BACON. Now, Your Honor, we want to have the doctor examine the X-ray pictures and explain them to the jury. We have tried to make arrangements to get equipment, a view box, I believe they call, with which to do that work. I am not sure whether we have one or not. It is small We might be able to use it but if the other side will cross-examine him we will get that at noon, and we could test it out and see if it would be available.

Judge LEE. Your Honor, we would like for them to finish their examination before we examine him.

Mr. BACON. It would take us a little time to send and get that, to see whether we could use it here or not.

Thereupon, court took a recess until 1:30 o'clock p. m.

AFTERNOON SESSION

The examination of Dr. Hayhurst was resumed by Mr. Bacon.

Question. Doctor, I believe you have already testified that you had examined some X-ray pictures made of the chest of Raymond Johnson. Do you have those X-ray pictures?

Answer. Yes, sir.

Question. I wish you would get them, please.

(The X-ray films were thereupon produced.)

Question. How many are there?

Answer. There are two in this package.

Question. Are there any others that you know of?

Answer. Yes, sir.

Question. I wish you would get the others also, if you are not afraid of mixing them.

Answer. One in that envelope, and there are two in this envelope; five all told.

Question. Do you have information as to which one of those was taken first? Answer. I presume this one marked "no. 1."

53293-367

Question. All right; I wish you would, if there is sufficient light hereYour Honor, we couldn't get the box referred to to work, because it wasn't large enough. I will ask you to exhibit that picture to the jury and point out to the jury, if you can, evidences in that picture of silicosis in the lungs of Raymond Johnson.

Mr. COUCH. We object.

Mr. BACON. From what evidence you can see there on it.

The COURT. Is that on the ground that no one has testified that he took the pictures?

Mr. COUCH. No, sir. I assume that they will properly prove the pictures themselves. I do not object on that ground.

Mr. BACON. Yes; I wanted to finish with this witness while I have him on the stand.

The COURT. The objection is overruled. Go ahead.

Answer. I shall have to go to one of the windows and request the jury to assemble around me, so that they can see what I wish to point out. I suggest we use that window right over there.

The COURT. All right.

Answer (at window). I am informed this was the X-ray picture that was taken last April, and I would point out to you here the fact that these are the ribs; this is the region of the breast bone; this is the heart shadow; the heart being more or less solid, filled with blood, makes the wide white shadows you see. The breast bone itself comes down only about that wide. In here, of course, are the swallowing tube, or esophagus, and the windpipe, which comes down to about this level. We note that those parts are in this central dark shadow, and then the windpipe divides up and its divisions go out into the lungs. These are the spaces between the lungs.

Question. Between the ribs?

This is the dia-
You will notice

Answer. Between the ribs. These are the collar bones. phragm or muscle separating the chest from the abdomen. that we are looking at this man from the rear, so that his heart is on the left side. The diaphragm is higher over here which is his right side, because the liver is under there, a large organ that is held rather high and lifts it up. The diaphragm top is lower over at this point. You notice there is a pretty clear area between the box of the chest and the diaphragm clear down into the corners. Now, this lung, for our purposes in diagnosing silicosis, shows a beginning mottling in all of these areas. It looks, as some say, like a snowstorm had struck the fellow's lungs. They are fine in this stage, 10 months ago, but they are about alike, that side and this side, top and bottom. That is first-stage silicosis in this period in this case.

Question. Let us have the second. There were two taken at the same time, I understand.

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Answer. This one bears the date March 10, 1933, 10th of this month. will reverse it, so as to have the heart in the same position as before. You will notice in regard to silicosis that these have become more numerous, they are thicker, closer together, especially in the upper lobes of the lungs. You will notice they are plentifully present in the middle and lower parts of the lungs. You will notice a great increase in the streaks of fibrous tissue that has occurred since we first saw the picture 10 months ago.

Question. What does that indicate, if anything, with reference to progress of the disease?

Answer. That indicates that the disease has progressed considerably in 10 months' time. Here is another X-ray picture taken March 16, 1933-that is March 16, this year. This shows more clearly the lower two-thirds of the lung areas. You will notice an immense amount of this nodulation or mottling all through these places. They are even on top of the ribs, although the ribs tend to block them out. You will notice that they are thickening up considerably in the upper portions, but it is thick on both sides. You will notice some of them are running together. There are groups, bunches of them. It is beginning conglomeration.

Question. In what stage of silicosis does that most frequently occur? Answer. Beginning third stage. Also the fibrous or scar tissue markings are very plainly in here. They have run down and attached to the diaphragm, and that tends to limit his breathing.

Question. In your testimony, Doctor, you have referred to nodules. Do you see any indication of them in those pictures?

Answer. This is the one of March 16, 1933. Each place I place my pencil noint is a nodule. There and there and there, there, there; in fact, almost

any place I would put my pencil point there is an individual nodule. If I come to a place like this there is a mass of them so thick you can't pick out the individual nodules. That is conglomeration of nodules.

Question. That occurs in what stages of silicosis most frequently?

Answer. In the third stage.

Question. Could this nodulation in that condition as shown by X-ray picture there have been produced by the inhalation of coal dust?

Answer. No, sir.

(The witness resumed the giving of evidence from the witness chair.) Question. Doctor, may tuberculosis be confused with first-stage silicosis? Answer. It may be; yes, sir. It is capable of differential diagnosis, however. Question. How would you tell first-stage silicosis from tuberculosis? Answer. Only one form of tuberculosis would confuse the picture at all, and that would be military tuberculosis, sometimes called galloping consumption because it is so rapid in progress. That might show at a certain stage nodules uniformly spread over both lungs, hence one picture would not satisfy for the diagnosis, if that was all you had. You inquire of the patient's history, his symptoms, and you will find that in tuberculosis he has the symptoms of fever, of sweats, of chills, perhaps tuberculosis germs in his sputum, a loss of appetite, rapid emaciation, great prostration-he is usually in bed. However, by X-ray you simply wait a couple months, 6 months, or a year, and take another one if the man is still living.

Question. May second-stage silicosis be confused with tuberculosis?

Answer. I never had seen a case where there seemed to be any reason for confusion.

Question. How would you tell third-stage silicosis from tuberculosis? Answer. In a beginning third stage there would be no reason for confusing the two. In a late first stage both conditions develop such massive fibroses that if the tuberculosis was exactly evenly distributed on both sides of the lungs you couldn't tell them apart from that one plate. That does not occur, however, once in possibly 25 cases of tuberculosis. However, at the third stage you would have the man in marked clinical symptoms of tuberculosis. Your labo. ratory checks, the physical examination, would be characteristic. If you were in doubt you would just wait a few weeks or months and take some pictures. By that time his tuberculosis is developed, because it is a rapidly going disease in the third stage, and you would have no difficulty whatever in differentiating third-stage silicosis from tuberculosis.

Question. Do you see any evidence of tuberculosis in these X-ray pictures, or do you see any symptoms or evidence of it in your examination made of this patient?

Answer. No, sir.

Question. Doctor, I believe I failed to ask you what, in your opinion, is the probable life of this plaintiff in the event no intermediate cause of death intervenes?

Mr. COUCH. We object. I think the witness went into that once.
General LILLY. No; Dr. Harless did. He said it was accelerated.

The COURT. This particular question was not answered, I believe, by this witness.

Answer. About a year; a year and a half at the most.

Mr. BACON :

Question. Did you find any other pathological condition in this plaintiff's lungs except silicosis?

Answer. No, sir; nothing but what silicosis does directly and secondarily, increases the fibrous tissues.

Question. I will ask you to state, Doctor, whether or not silicosis may sometimes affect the heart, and if so, in what way, and for what reason.

Mr. COUCH. We object.

Judge LEE. He has already done that. Mr. BACON. Has that been covered? to me. may cross-examine.

I believe it has. It was suggested

I think you

I wasn't certain. I don't care to ask him any further.

Cross-examination by Mr. COUCH:

Question. Doctor, when did you first make a physical examination of the plaintiff?

Answer. Day before yesterday, in the evening.
Question. Where?

Answer. At Dr. Harless' office at Gauley Bridge.

Question. Who was present at that time?

Answer. Dr. Harless, Dr. Harless' son, Mr. Bacon, and I think Mr. Lilly. Mr. Teubert, perhaps. I am not sure about that, whether Mr. Teubert was in or not.

Question. Who requested you to come here as a witness?

Answer. Dr. Harless.

Question. Before making this physical examination of the plaintiff, as you have just described, did you get his history?

Answer. Yes, sir.

Question. Whom did you get that from?

Answer. Dr. Harless.

Question. Doctor, do you remember whether or not he had the written report that he read to you, or did he narrate the history orally?

Answer. He narrated it, perhaps, from some written history he had. He had some papers in his hand.

Question. Were you in the courtroom yesterday when Dr. Harless testified? Answer. Yes, sir.

Question. Did you hear him read from a paper at that time which purported to be a report made by him

Answer. Yes, sir.

Question. (Continuing)—showing the history of Johnson?

Answer. I saw him read from several reports.

Question. In giving you the history night before last did he read from the same report that he read from yesterday on the stand?

Answer. The narration was practically identical in both cases.

Question. I believe you said on direct examination that in your experience you had had many cases referred to you which were claimed were silicosis, but which turned out not to be silicosis, is that true?

Answer. That is true; yes, sir.

Question. I also believe, Doctor, that you said that you agreed with the view that silica, dissolved in the lungs as you have described, was poisonous? Answer. Yes, sir.

Question. Is there one school of so-called silicosis experts who do not subscribe to that doctrine?

Answer. There is one school who claim that its action is due to absorptive properties of the cells, which distort them and their function, and by that means produce silicosis. Absorption is a physiochemical process. The end result is the same.

Question. Is there a difference of opinion as to what the chemical reaction produced by these silica particles is?

Answer. Not that I know of. There are a few who have investigated that aspect of the case, and in the main they agree. Their disagreements are in relation to whether the silica goes into the cell which it is going to kill by direct solution, or whether it fastens on the outside of the cell and by that means chokes off the cell's nourishments and waste removal so that it dies. It is just a matter of whether the death-dealing process is within the protoplasm of the cell or in the cell membrane that surrounds the protoplasm.

Question. Well, it was formerly taught and argued that the damage from silicosis was caused by these particles cutting tissues in the lung, was it not? Was that the original thought?

Answer. That was the old theory, as part of the explanation of its damages. Question. I believe the intensive study of silicosis in America is a matter of recent years, is it not, Doctor, comparatively?

Answer. Twenty years. Perhaps a little more accurately, 18 years. Question. You say 80 or 90 percent of the ordinary mortals have tuberculosis germs in their systems?

Answer. Of the present-day adults; yes, sir.

Question. Well, is fibrosis present in tuberculosis in the second stage or the advanced stage?

Answer. Yes, sir.

Question. Coal dust does not produce nodules, does it?

Answer. No, sir.

Question. I believe you say that a coal miner is more susceptible to silicosis than a man who has never been in the mines?

Answer. It makes him slightly more susceptible.

Question. Did you state in your direct examination that formalin would toughen or stiffen the tissues immersed in it for any length of time?

Answer. It will.

Question. The longer it stays in there the stiffer would become the tissue? Answer. Not after the first few weeks. It depends on the thickness and solidity of the tissues. They soon reach a fixed condition of stiffness, that they don't go beyond. It takes formalin longer to produce that effect in a thick tissue than it does in a thin one, like intestines, for instance, or lung tissues.

Question. I believe you stated, Doctor, that the disease of silicosis may be arrested by proper treatment and absence from dust, and proper nourishment. Does that depend to some degree upon the proper nourishment or not? Answer. I don't believe I made that statement. I said that was the method of treatments, but I did not claim that it would arrest the case of silicosis. Quesion. Would proper nourishment have its effect on prolonging the life of a silicotic?

Answer. No doubt. Improper nourishment, on the other hand, would shorten

life.

Question. Doctor, have you ever been in Fayette County, W. Va., prior to this trip?

Answer. Never that I know of, except going through on the C. & O., perhaps along between midnight and 5 o'clock in the morning.

Question. You have never stepped your foot upon the ground of Fayette County before?

Answer. Never until yesterday.

Question. Have you ever had any experience with the use of dynamite? Answer. Well, I used to live around a quarry and see them shoot it, and I, of course, had to consider it in my specialty of occupational diseases. Question. How long ago did you live around a quarry?

Answer. Forty years ago.

Question. Do you know what 60-percent dynamite is?

Answer. I presume it is 60-percent nitroglycerin in the matrix that it is charged with to carry it. Pardon me, I should say nitrocellulose.

Question. That is your information of what is 60-percent dynamite? Answer. That is what it would mean to me at the present time. I am not a chemist in that field.

Question. Referring to the X-ray films, Doctor, you showed the jury that there was a thickening up-I believe you used that term-considerably in the upper section of the lungs, and you pointed that out to the jury. Is that so? Answer. There was an increase in the number and sizes, perhaps, of these nodules-especially the number.

Question. In the upper part of the lung?

Answer. Both sides.

Question. In other words, it was bilateral?

Answer. Bilateral.

Question. Do you regard those films as satisfactory films?

Answer. For this purpose; yes, sir.

Question. Yes. How do you account for the fact that the nodule margins as shown on those films are hazy?

Answer. They are very rapid developments. They haven't become fixed. Question. Is that the only explanation you have of that?

Answer. That is all that I think is necessary; yes. It easily explains it. Many of them are quite definite. When the process is growing rapidly, they have indefinite or slightly fuzzy outlines or contours.

Question. As I understood you, Doctor, we all, as human mortals, have more or less silica particles in our lungs?

Answer. Adults do. Infants' lungs, when analyzed shortly after birth, do not show any.

Question. But those of us who walk about and go about our daily pursuits have more or less silica in our lungs?

Answer. Yes, sir.

Question. Silica particles taken into the stomach are nonpoisonous, are they

not?

Answer. Yes, sir; they are nonpoisonous.

Question. Do other diseases besides silicosis have nodules?

Answer. A number of them; yes, sir.

Question. What are they?

Answer. I mentioned miliary tuberculosis.

Generalized-well, I will have

to use the technical term-metastic cancer. That is cancer usually some other place than the lungs which has broken into a blood vessel that leads to