Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 83-19775.
Ralph G. Wellington, Philadelphia, for appellant.
William R. Caroselli, Pittsburgh, for appellee.
Brosky, Rowley and Popovich, JJ.
[ 359 Pa. Super. Page 479]
This is an appeal from the Judgment entered on a jury's verdict in favor of plaintiff, Howard F. Dale, following the denial of post-trial motions and the assessment of delay damages pursuant to Pa.R.C.P. 238. The plaintiff brought this action in trespass under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1972) (FELA), for injuries he sustained in the course of his employment with appellant, The Baltimore & Ohio Railroad Company (B & O). Plaintiff alleged that he was totally disabled as a result of developing asbestosis from continuous exposure to asbestos dust in the course of his employment as a pipefitter for B & O from
[ 359 Pa. Super. Page 4801944]
to 1955,*fn1 and that his disability was caused by the negligence of B & O. It is undisputed that the plaintiff suffered from asthma since childhood.
B & O presents six issues for review. After having thoroughly reviewed the record and after having carefully reviewed the arguments of the parties and amicus curiae,*fn2 we vacate and remand.
B & O first argues that the trial court erred by instructing the jury that it knew or should have known that plaintiff's on-the-job exposure to asbestos-containing products presented an unreasonable risk of harm. The trial court found that the instruction was proper in light of exhibits that were admitted into evidence at trial by the plaintiff. The exhibits consisted of minutes of meetings held by the Medical and Surgical Section of the American Association of Railroads between 1932 and 1953.*fn3 B & O was a member of the Association and its medical officer was a member of the Medical and Surgical Section. He attended the meetings that were memorialized in the minutes. Also, the president of B & O was a member of the Board of Directors of the Association during the relevant time period.
The trial court summarized the undisputed aspects of the case and the relevant contents of the exhibits as follows:
During the relevant period of time the B & O 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 the asbestos-containing
[ 359 Pa. Super. Page 481]
material. Exhibits 7 through 18 clearly establish that the B & O, 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 ...