214 A.D. 343 | N.Y. App. Div. | 1925
The main question on this appeal is whether the finding of the State Industrial Board that the deceased workman died as a
After his death in June, 1924, his widow brought this claim for compensation based upon death resulting from accidental injury to the tongue. She testified that on the night of the accident, February 7, 1923, he returned home and told of the shock, of the fall, of the hand injury and of the biting of the tongue. She did not look at the tongue then but did the next day and noticed that there were teeth marks on the tongue. She looked at it several times after that and it swelled up and got larger and a hole or opening developed in it. Prior to his death he made an affidavit reciting the biting of his tongue at the time of his fall and stating that he told a fellow-employee who helped him up of having bitten his tongue but this employee testified that the deceased did not say that to him and that he did not notice anything at all about bis tongue when the accident happened; that he knew nothing about it until the deceased told him about it during the following July or August. The testimony of the widow and others as to the declarations of the deceased is purely hearsay as to the biting of the tongue at the time of the fall. The affidavit of the deceased is not legal evidence of such an accidental injury. The
The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
All concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.