202 A.D. 36 | N.Y. App. Div. | 1922
Walter B. Hill was employed as a machinist by the Ancram Paper Mills. It is alleged that on January 24, 1920, he received an injury arising out of and in the course of his employment which for the first time disabled him on November 26, 1920, and which resulted in his death May 14, 1921. Disability awards were made to him before his death and an award for death benefits was made to his dependents after his death. All the evidence and proceedings have been embodied in one record. It is necessary, however, to consider separately the disability awards and the award for death benefits.
On February 14,1921, Mr. Hill testified before the State Industrial Commission that on January 24, 1920, he went out of a building to get some oil and that an icicle that hung on the building fell and hit him on the head. He described the icicle as being “ about as big as a man’s body ” and says that it cut his head but to what extent he did not .state. There is no statement as to the distance which the icicle fell nor as to the severity of the blow nor that it felled him to the ground nor left any contusion or mark other than the cut on his head. He did not testify to any ill effects either at the time of the accident nor for ten months thereafter. It did not interrupt his work nor did he give his employer notice of injury nor make any claim for the same. He related the incident to his superintendent and assistant superintendent but when asked
On April 13, 1921, another hearing was had when Dr. Dingman testified that he operated on the claimant for a fractured skull; that there was a scar on top of the head and a fracture below the scar; that a portion of the skull was pressing on the motor area of the brain; that the malady from which the claimant was suffering was Jacksonian epilepsy which was relieved by the operation but that the operation was followed by paralysis. He gave no description of the extent or apparent age of either the scar or the fracture. On this testimony the second award of April 13, 1921, was made covering the period from February 11, 1921, to April 15, 1921.
In my opinion no causal relation was established between the injury on January twenty-fourth and the malady which first asserted itself on November 26, 1920. Although the icicle as described by the claimant was sufficiently large to kill him if it had fallen a sufficient distance it may not have fallen more than an inch as far as the evidence discloses. He may very easily have received after the icicle incident many injuries more serious than that as described by himself. He regarded it as a mere incident and as a matter of no importance. There was no effort on the part of the physician to connect the fractured skull with the fall of the icicle. Claimant himself did not testify that he had not received a blow on the head at or shortly prior to the time the' epilepsy made its appearance. He testified to no symptoms nor premonitions nor any unusual or unnatural feelings which might be deemed to herald the approach of epilepsy. Very significant. is the fact that the physician failed to testify that the claimant might have fractured his skull in such a way as to cause it to press on the brain for a period of ten months without any noticeable effect on the claimant or realization on his part of anything wrong and that then suddenly
The award on the death claim rests on a surer foundation. The testimony taken on the disability claim was received in evidence on the death claim. Objection was made but not on the ground that the testimony was incorrect or unauthenticated. The appellants at the hearings on the disability claim had and exercised the right of cross-examination. Independently of any statute the former testimony of the deceased employee was competent at common law. (Bradley v. Mirick, 91 N. Y. 293; 2 Wigm. Ev. [1904 ed.] §§ 1387, 1388.) It should, therefore, be given the probative effect to which it was entitled on the disability claim. Unsupplemented by other testimony as we have seen it is insufficient. In addition, however, at the hearings on the death claim the superintendent and assistant superintendent of the employer testified that Mr. Hill shortly after the accident showed them his head and that they saw contusions and blood thereon. His wife testified that she at different times washed his head where it was injured and endeavored to cleanse it. It is also a fair inference from her testimony that he had no other serious injury prior to his convulsions on November twenty-sixth. Other physicians not called as witnesses on the disability claim testified in effect that the condition which developed on November 26, 1920, might have resulted from a fractured skull occasioned by the fall of the icicle on the preceding January twenty-fourth. There is also evidence of a fractured skull independently of the testimony of Dr. Dingman given on the disability claim and who did not testify on the death claim. Thus the deficiency in the evidence which existed in respect to the disability claim was supplied in respect to the death claim.
Notice of death was not given within the statutory time and it is seriously urged that this omission was improperly excused. The reasons stated in the findings for such excuse are not beyond criticism but the criticism is that more substantial reasons might have been given than were given for the conclusion that the appellants were
The disability awards should be reyersed and as to them the claim dismissed, without costs, and the award for death benefits should be affirmed, without costs.
All concur.
Disability awards reversed and as to them claim dismissed, without costs, and award for death benefits affirmed, without costs.
