Anderson v. Kiene

• Decision Date: 04 October 1919
• Docket Number: 21062
• Citation: 174 N.W. 301,103 Neb. 773
• Parties: SAMUEL G. ANDERSON, APPELLANT, v. GEORGE KIENE ET AL., APPELLEES
• Court: Nebraska Supreme Court

174 N.W. 301

103 Neb. 773

SAMUEL G. ANDERSON, APPELLANT, v. GEORGE KIENE ET AL., APPELLEES

No. 21062

Supreme Court of Nebraska

October 4, 1919

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

Switzler Goss & Switzler, for appellant.

James C. Kinsler, contra.

DEAN J. ROSE, J., not sitting.

OPINION

DEAN, J.

Plaintiff filed an application in the compensation commissioner's office pursuant to the employers' liability act, namely, chapter 35, art. VIII, Rev. St. 1913, as amended, Laws 1917, ch. 85, to recover for personal injuries sustained while in defendant's employ. The application was denied, and upon appeal to the district court for Douglas county the finding of the compensation commissioner was affirmed and the action dismissed. Plaintiff appealed.

The only question involved is whether the judgment is sustained by the evidence. The injury occurred on July 24, 1918, that being the second day of plaintiff's employment. He was then 18 years of age. His wage was at the rate of 45 cents an hour for an 8-hour day. Beginning immediately after the accident, and for a period of 22 weeks, defendant paid plaintiff, as compensation, $ 264, being $ 12 a week, and also all hospital and medical services, which amounted to $ 198.50 additional.

At the time of the injury plaintiff was working on the upper part of a one-story brick building. His work consisted in taking the wheelbarrows, loaded with bricks and said to weigh about 30 pounds, from a hoist or elevator and wheeling them to the different parts of the building as needed by the workmen. Plaintiff testified that the scaffolding gave way just as he was about to remove a wheelbarrow, and that he fell with the elevator about 30 feet. Upon examination it was discovered that he received an injury to the "third lumbar vertebra." Plaintiff contends the injury is permanent.

To determine this point expert testimony was introduced by the parties. On the part of plaintiff a physician testified that his examination showed the spine to be normally flexible. He further testified: "Q. And this spine, then, is normally flexible now, or just as flexible as any spine would be that had never been injured? A. It seems to be." A doctor called by defendant on cross-examination testified: "Q. Did you find any evidence at the present time of any injury to his back? A. No. Q. And is it not a fact that you find him to be in perfect physical condition at the present time? A. As far...