Adam v. Farbo

• Decision Date: 13 April 1959
• Citation: 16 Misc.2d 614,184 N.Y.S.2d 772
• Parties: Application of David F. ADAM, Jr., Petitioner, for an Order v. Joseph FARBO, Peter Barry, Leonard V. Tomszak, G. Rolfe Schofield, Jr., Frank J. Horton, John G. Bittner, Hyman B. Freeman, August Muchlheisen and William A. Legg, Members of the City Council of the City of Rochester, and Robert P. Aex, the City Manager, Respondents.
• Court: New York Supreme Court

Page 772

184 N.Y.S.2d 772

16 Misc.2d 614

Application of David F. ADAM, Jr., Petitioner, for an Order v. Joseph FARBO, Peter Barry, Leonard V. Tomszak, G. Rolfe Schofield, Jr., Frank J. Horton, John G. Bittner, Hyman B Freeman, August Muchlheisen and William A. Legg, Members of the City Council of the City of Rochester, and Robert P Aex, the City Manager, Respondents.

Supreme Court, Monroe County.

April 13, 1959.

Myer Braiman, Rochester (Seymour Bernstein, Rochester, of counsel), for petitioner.

Honora A. Miller, Corp. Counsel, Rochester (James H. Boomer, Rochester, of counsel), for respondents. FREDERIC T. HENRY, Justice.

The petitioner has shown that on June 28, 1955, he was a Fire Lieutenant employed by the City of Rochester, and was engaged in the demonstration of a new fire fighting technique involving the use of a portable turret gun. While standing on a hosebed inside a fire truck he and several other firemen began lifting the turret gun which weighed over two hundred pounds. A piece of hose on which petitioner was standing turned over, or separated, and he slipped down six or seven inches from his former position, momentarily losing his balance. He exerted his full strength to try 'to keep it up there'. At this moment he saw a brilliant flash 'as though someone had taken a--a mirror and flashed the sun across the eyes.' He continued with his work that day and in the days following, but objects appeared darker than usual to him that day and the following day hazy and distorted. He did not report the accident at the time nor in the weeks following when the vision of his right eye continued to deteriorate, explaining on trial that: 'I couldn't put my finger on where it had come from. You can't report something that you don't know exactly what to report'. He consulted a physician on September 14 who found that visual acuity in the right eye was 20/50, but on subsequent examination on October 7, 1955, vision had dropped to 10/200. Internal examination of the eye revealed a retinal detachment involving approximately seventy-five to eighty per cent of the retina. On being advised of the full case history, his physician stated his opinion that there was a direct relationship between the accident and the subsequent condition of deteriorating eyesight, progressively detached retina, and eventual blindness in the right eye.

Respondents maintain that the eventual detached retina and blindness of petitioner is the result of a long course of chronic intraocular inflammatory disease, and that final total disability would have occurred regardless of his employment, and that the alleged accident of June 28, 1955, during the course of petitioner's employment, did not occur. The respondents have shown that the petitioner did not report the alleged accident of June 28, 1955 to his superiors. Co-workers of the petitioner, who were working with him on the day of the alleged accident have testified that they do not recall the occurrence of the accident which the petitioner described. This evidence is properly to be considered in determining whether or not such an accident occurred. In view of the fact, however, that the alleged accident was not extraordinary and did not result in any apparent damage or injury, it seems doubtful if the witnesses would have noticed or remembered it. The fact that petitioner did not report the June 28 incident to his superiors or his co-workers does not refute his statement of the occurrence, in view of his explanation, bearing in mind his past recurring eye complaints and considering that he did give his physician the exact time of the event of his eye shock. On all the evidence, I find that the alleged accident of June 28, 1955, described by the petitioner, did in fact occur.

Until October of 1943 when he was in the army, petitioner had normal vision of his right eye. He began to have trouble with it and was diagnosed as having retinal chorioiditis, also known as chorioretinitis, for which he received a medical discharge and a ten per cent disability pension from the Federal Government. Petitioner later left college on a recurrent attack and also left a subsequent job on complaint of eye strain in 1946. Acute chorioretinitis of the right eye was then diagnosed. In 1947 petitioner applied for and was accepted as a fireman of the City of Rochester. An eye examination by the fire department's examining physician showed normal vision of both eyes at such time, and also later in 1954, when petitioner applied for promotion to lieutenant. During this period and from the time of his first application petitioner had approved the obtaining of his medical history by the Rochester Civil Service Commission, and that office had a report of his history of chorioretinitis.

In March of 1955 petitioner was examined by a private physician who found that although sight was normal, tissue scars of past chorioretinitis were visible, and, more important, that petitioner had a partially detached retina in the right eye. Approximately 1/2 or 2/5 of the retina was detached, and it came within six degrees of the macula region. The condition could have been caused by recurrent chorioretinitis. Once existing, the prognosis is generally poor, although some cases may be successfully treated by surgery. Both petitioner's physician on direct examination and the fire department's examining physician on cross-examination stated that, with the prior existing condition of a detachment, a sudden jolt or strain as described by petitioner to have occurred June 28 could very probably cause or hasten a much more severe detachment.

I find from the evidence that the accident of June 28, 1955, was a competent producing cause of injuries to petitioner which resulted in his disability.

Respondents maintain that petitioner has been guilty of laches in failing to notify the city at an earlier date of the accident. However, the only witness not immediately available to the city on this trial was a co-worker who had left the state, and there was no showing by either party that his testimony would have favored either respondents or petitioner. Other co-workers were produced, and all medical records were available. Even if the city had been promptly advised of the accident, the same move for...