Hess v. Bernheimer & Schwartz Pilsener Brewing Co.

Per Curiam: In Kenz v. Bernheimer & Swartz Pilsener Brewing Co. (162 App. Div. 777) we held this appellant liable toward one of the men engaged in varnishing these beer vats for the [847] effects of exposure from the fumes of wood alcohol. The deceased had been so engaged for several days. According to Kenz, the deceased had worked five days varnishing, in the same vats, from eight a. m. to five p. m. The deceased, Charles Hess, was normally a large, strong man, weighing about 200 pounds, who had not consulted a physician. He came home from this work on December seventh. When his daughter reached the house her father, the decedent, was already there. He ate no supper. He was vomiting. After that he went to bed. About one a. m. she was called by deceased to light the gas, which had been turned down low. Although she turned it up, deceased asked her again to light the gas." Later he got out of bed, but had to be assisted. He went near the window. He raised it, but put his arm through the glass. He then fell to the floor and became pnconscious. Dr. Teplitz was called in, but did not testify. The deceased remained unconscious, his eyes protruding. His death followed, without regaining consciousness, about five A. M. the next day. In connection with the other casualties to those who had. been with him on this varnishing job, this testimony supplied grounds upon which a jury might find wood alcohol fumes were the efficient cause of his death. However, appellant objects to the hypothetical question to the expert Dr. Weston, because the witness was thereby required to draw inferences of fact as to whether decedent’s actions indicated blindness, dizziness and delirium, which are diagnostic indications of wood alcohol poisoning. It is urged that this induction should have been left to the jury as a question of fact. Obviously, a hypothetical question must rest on assumptions from testimony. Such scattered incidents are brought together to form the basis for an opinion that certain symptoms had appeared. The witness had to infer whether a repeated demand to turn on the light, when the light was already burning, showed blindness; whether Hess’s difficulty of moving about, so that he had to be assisted, manifested dizziness; and so on, as to the other acts, which might be effects of poisoning. By cross-examination the distinct steps or factors [848] in the final expert opinion that the fumes inhaled in these vats would be a competent cause of the sudden death, could be separated, and each submitted to the jury as inferences of fact which they could readily comprehend and then could accept or reject. To a greater or less extent this must generally be the case, because symptoms are not uniform, and an induction of fact is needed to identify a certain outward manifestation, as diagnostic marks of an inward condition. In this way the jury had not only the general conclusion that “ wood alcohol may cause such a death,” but also the separate inductive steps by which the witness traced the stupefying effects of these alcohol fumes. This was no error. Appellant also urges that testimony as to others likewise injured was not proper. An investigation into the effect of these fumes could not reasonably ignore the consequences on Kenz and on others who worked there in the same vats and suffered from a like exposure. This inquiry about other persons subjected to like influences is the rational way to carry on such an investigation, as it may tend to show effects of the same cause. Thus courts take proof of other locomotives spreading fires, in actions against a railway (Field v. New York Central Railroad, 32 N. Y. 339); in actions against a shipowner for lack of proper foods, that others in a ship’s crew have also been afflicted with scorbutic ailments (Baxter v. Doe, 142 Mass. 558); also that lead poisoning is general in a paint factory. (Shea v. Glendale Elastic Fabrics Co., 162 Mass. 463. See Wigmore Ev. § 457.) Appellant’s other objections have been considered, but we think are unfounded. The judgment and order should be affirmed, with costs. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred; Thomas, J., dissented for reasons given in his dissenting opinion in Kenz v. Bernheimer & Swartz Pilsener Brewing Co. (162 App. Div. 779). Judgment and order affirmed, with costs.