Sinsko v. A. Weiskettel & Sons Co.

Adkins, J., delivered the opinion of the Court. This case grows out of a claim, on behalf of herself and her minor children, filed by the appellant with the Industrial Accident Commission for the death of her husband, Joseph Sinsko, who was employed as a sand blaster by the appellee. The commission disallowed the claim. On the record sent up from the commission, two issues were submitted to the jury, viz.: (1) ’Did J. Sinsko, deceased, sustain an accidental injury arising out of and in the course of his employment?

(2) Was the death of J. Sinsko the result of an occupational disease incident to his employment ? It appears from the evidence that decedent worked for appellee over sixteen years in the sand blast room, a room about ten by twelve feet, and about eight feet high. The vice-president of the company testified that the company always procured the latest and most approved protection devices for its employees. The stepson of decedent testified that “the sand is forced by a hundred pounds of air, and he uses a gun to clean the rusty tubs and it produces dust in this room. líe has to use the sand to clean out the tubs.

I ⁶¹⁶ worked down, tkere at that time when he started in 1916. Tkere was only one fan on the side, which did not draw enough dust out of there. He would inhale a lot of dust. It is not the same condition as the outside because it is always full.

He complained about seven years, I think. * * * He asked the company to send him to the doctor and they did, but he could not find anything wrong at that time, he went to the company’s doctor and reported it and the doctor told bim he could go to work. He kept on working and gradually got worse. He got so bad off he could not breathe any more and he had to give up his job. Then he went to his own doctor, Dr. Helfgott.

Dr. Helfgott examined him and told him he had this pneumonoconiosis”; that later Dr. Mohr, the company’s doctor, examined him and said he had tuberculosis, and that he should go to a sanatorium. He died in the State Sanatorium on January 5th, 1930. Dr. Sax, an X-ray specialist, a witness for claimant, testified that decedent had pneumonoconiosis, which he described as “a condition of the lung which is caused by inhaling a foreign substance, dirt, particles, sand particles, coal particles. It is usually occupational in variety due to the patient being exposed to it, and this causes in the lungs an irritative process which leads to an infiltrated fibrosis of the lung.” Dr. Nathan J. Helfgott, a witness for claimant, testified: “It was pneumonoconiosis or occupational disease.” Other doctors, offered by defendant, testified that deceased had tuberculosis.

John Sinsko, a witness for claimant, testified: “Sand blasting work is a pretty good paying job, but it will ruin your health, when you start to work there. You have to get used to that. And still those jobs down there are the most sought of jobs. Work several months and quit.” Witness said he quit, “because I knew it wasn’t healthy to work there.” The court granted defendant’s two prayers, the first of which directed the jury to answer “No,” to the first issue and “Yes” to the second; and the second prayer instructed the jury that there was no evidence legally sufficient to show that the disease from which the decedent died was the result ⁶¹⁷ of ail accidental injury arising out of and in the