107 Neb. 411 | Neb. | 1922
This cause was tried in the district court for Douglas county upon appeal from an award of compensation by the compensation commissioner. There is no question but that the plaintiff sustained severe and probably permanent injury. The accident occurred in the sausage room in defendant’s plant on August 29, 1919, the plaintiff being struck upon the hip by a shovel which was in use by a fellow workman. There is conflict in the testimony as to whether the striking by the shovel was accidental purely, or whether the shovel was in the hands of the fellow employee and the blow given “just for fun,” or whether the blow was given as the result of an altercation between the plaintiff and her fellow employee in reference to whether plaintiff was a member of a certain union. It is also contended that the plaintiff had, a day
Appellant presents two consignments of error: That the court erred, first, in finding plaintiff was not injured as the result ofv an accident arising out of and in the course of her employment; and, second, that the court erred in refusing leave to plaintiff to amend the pleadings and submit evidence as to the prior fall or injury of plaintiff.
A careful reading of the record discloses the fact that, while the circumstances surrounding this accident and which led up to it are not so clearly shown as will enable us to reach an entirely satisfactory conclusion as to just what did take place, yet that was the particular province of the trial court, which was also better situated to do so, and had the advantage of seeing and hearing the witnesses. It has become the established rule in this state that in such cases the finding of the trial court will not be disturbed unless from the record the review
With reference to the second assignment, the original complaint before the compensation commissioner designated an injury, as the foundation of .the complaint, Avhich had occurred August 29, 1919. There was, in fact, an injury, upon which plaintiff sought to rely, occurring on that date. Therefore the rule which would perhaps allow the plaintiff to show a different date than that alleged had no application, and the prior injury became, in effect, an additional ground of action as to which the statute of limitations had run at the time of the trial, and this evidently Avas the. theory upon which the trial
"It follows that the judgment of the trial court should be, and it is,
Affirmed.