194 A.D. 568 | N.Y. App. Div. | 1921
Lead Opinion
The work of the deceased employee was performed upon the ninth floor of a factory building. He was engaged-as a foreman in working upon a machine and in handing out work to the women there employed. On the morning of the day of the accident, he complained frequently of pains in his head. He, nevertheless, continued at work until the early part of the afternoon. At this time one of the factory hands saw him leave the room where he worked and go into an adjoining room, holding his hand to his head as he went. This room was used for showing the factory product, and was empty at the time. .It was lighted by a single window seven feet high by four feet wide, which was usually kept closed. The window sill was three feet wide, and stood two feet six inches above the floor. In close proximity to it and running along its entire width was a radiator which was two feet high and eight inches wide. The deceased had frequently been seen eating his lunch sitting on the sill of the window. Within about five minutes of his leaving the work room one of his employers, observing that the women in a factory on the opposite side of the s.treet were at its windows screaming out excitedly, looked down upon the street and saw the body of the deceased lying on the sidewalk directly below the show room window. One of the partners then rushed through the factory crying out that the deceased had “ jumped out,” or “ must have jumped out ” the window. The deceased when picked up was found still to be alive, but died within a few minutes. After hearing the proof upon the claim filed for his death the Industrial Commission made an award, finding, among other things, that the deceased “ was afflicted either with vertigo or fainting, and as a result he fell from the window to the street, and received injuries as a result thereof, from which he died about one hour later.”
It having become firmly established that the occurrence of accidents causing compensable injuries may never be presumed, but must always be proven, the sole question here arising is whether the known facts of the case permitted the inference drawn by the Commission that the deceased came to his death from an accident attributable to his employment. The distance from the floor to the top of the radiator and across the window sill to its outer edge was at least six feet and two
The award should be reversed and the claim dismissed.
All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Woodward, J., concurs.
Dissenting Opinion
On the authority of Santacroce v. Sag Harbor Brick Works (182 App. Div. 442); Lindquest v. Holler (178 id. 317); Driscoll v. Gillen & Sons Lighterage, Inc. (187 id. 908; 226 N. Y. 568); Vogel v. American Chicle Co. (190 App. Div. 797) and Chludzinski v. Standard Oil Co. (176 id. 87) I dissent. It is not probable that the deceased intended to commit suicide. There is no suggestion that he was crazy. He was upon the ninth floor of a building and evidently went to the window for fresh air to reheve his headache. He frequently sat in the window for luncheon and the air. He may have been careless, but the Commission was justified in finding that the death was accidental. We cannot review the question of fact.
In construing this remedial statute, where all reasonable intendments are in 'favor of the employee, I fear we are leaning backwards and adopting a more stringent rule than would prevail in an ordinary action of negligence. In death cases, where there is no eye witness to the accident, it is impossible to prove the exact condition; inferences may play a controlling part, and slight inferences create a question of fact upon which a judgment may well stand. (Noble v. N. Y. C. &. H. R. R. R. Co., 20 App. Div. 40; 161 N.. Y. 620; Fordham v. Gouverneur Village, 160 id. 541.) This rule is upon the theory that the deceased cannot speak but that if he could speak he probably would be able to give a good account of himself. (Mullen v. Schenectady R. Co., 214 N. Y. 300, 305, and cases there cited.)
In Santacroce v. Sag Harbor Brick Works (supra) an employee was working upon a pile of brick about fifteen feet above the ground and was seized with an attack of vertigo, or with some similar disorder, which caused him to fall to the frozen ground. It was held that the evidence justified the conclusion that he became dizzy and fell, and the award was affirmed by us unanimously.
In Driscoll v. Gillen & Sons Lighterage, Inc. (supra) an award for death benefits was sustained where the captain of a lighter was last seen on December thirty-first, at six o’clock p. m., going towards his boat. His dead body was found in the water near the boat on May second.
In a common-law action the plaintiff can recover * only
Woodward, J., concurs.
Award reversed and claim dismissed.