This is an action brought under the workmen’s compensation act. Herbert Huffman was' employed as a warehouseman for the defendant at Scottsbluff. He appeared to be in good health when he went to work on the morning of November 5, 1931. After about 3 o’clock on the afternoon of that day he was testing scales. In doing so, he lifted 40 to 50 one-hundred pound sacks of sugar1 from the scales to an endless' belt conveyor about 18 inches to 2 feet away. He would pull off a sack or two from the scales, then weigh the remainder and adjust the scales to make them balance; the performance was then repeated over and over until 4:30 or 4:45 p. m. His son-in-law, who was working with him, noting shortly after they started that he “looked like he might be fatigued or tired,” asked him if he was tired, and he stated “that he felt as if he might have eaten something; that is, he felt heavy or logy.” Huffman left work about 4:45 p. m. saying he was tired and thought he would go home early and rest for a party he was to attend that evening.
After reaching home Mrs'. Huffman noticed nothing unusual about his condition except that he appeared tired, but she testified that he always appeared tired when he got home from work. He ate a heavy supper, accom
Jennie E. Huffman, wife and dependent of deceased, made claim before the compensation commissioner for compensation, claiming that the strain of lifting the sugar caused his bowel to become twisted, thus causing the gangrene which in turn caused his death. The claim was disallowed, whereupon plaintiff appealed to the district court, and upon, hearing held in that court, at the close of the testimony of the claimant, upon motion of the defendant, the case was dismissed. Plaintiff appealed.
Was plaintiff’s evidence sufficient to establish that deceased’s illness and subsequent death were caused by an accident arising out of and in the course of his employment? The evidence is not persuasive.
The doctors differ in their evidence as to the condition of the intestine at the time of the operation and the physician’s testimony is at odds with the hospital report. On cross-examination he says the report is his, but that it is wrong. Both testify that volvulus may be produced by a severe catharsis, fecal impaction, constipation, a severe strain or other causes; that thrombosis or embolism would produce gangrene, and that if Huffman had suffered a thrombosis after he went to bed that night it
Both doctors testify that, if there was a strain sufficient to produce a condition such as Huffman’s, the first indication of such condition would be distress, discomfort and pain. Huffman did not complain of pain before 11 o’clock that night. The osteopath testified that the effect of a volvulus amounting to a complete twisting of the bowel would be a very severe pain and immediate rigidity and shock, immediate prostration; if sufficient to cut off the nerve impulses and blood, gangrene would set in immediately, and that one cannot have gangrene long without temperature. The evidence shows Huffman had only developed one degree of temperature by the next noon, and no rigidity until the middle of the afternoon.
The doctors also say that, after Huffman’s bowel was folded on itself or started to twist, it tightened down gradually. However, the osteopath later says that in his opinion the bowel was in the same position at the time he quit work as at the time of the operation, and that at the time of the operation it was twisted sufficiently to cut off the blood supply completely. He also says it-- is
It is needless to recite more of the evidence. We have examined all of it carefully and it fails to carry that conviction upon which a judgment of a court should rest. Money ought not be transferred from one party’s pocket to that of another upon evidence of such doubtful import.
If the doctors by their testimony mean to imply that the ordinary exertion incident to the handling of the sugar caused the bowel pathology testified to, we fail to find in the evidence satisfactory explanation of, or sufficient foundation for, such inference. If they mean to say that, while lifting the sugar Huffman strained himself and that the strain caused the twist in the bowel, such evidence is insufficient upon which to base an award, for there is no proof that he strained himself, unless it be argued that volvulus' may be caused by strain, and since Huffman had a volvulus that he strained himself.
“If an inference favorable to the applicant can only be reached by speculation or conjecture, then the applicant cannot recover.” De Bruler v. City of Bayard,
“Awards for compensation cannot be based upon possibilities or probabilities, but must be based on sufficient evidence showing that the claimant has incurred a disability arising out of and in the course of his employment.” Bartlett v. Eaton,
In this casé the burden was upon the claimant to show with reasonable certainty that personal injury was caused to the employee by an accident arising out of and in the course of his employment. She must remove the case beyond the realm of speculation and conjecture. Omaha & C. B. Street R. Co. v. Johnson,
Upon consideration of the evidence, we are of the
Affirmed.,