Baltimore & O.R. Co. v. Zapf
| Decision Date | 17 February 1949 |
| Docket Number | 88. |
| Parties | BALTIMORE & O. R. CO. v. ZAPF. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County; Joseph D. Mish, Judge.
Proceeding under the Workmen's Compensation Act by Joseph G. Zapf claimant, opposed by the Baltimore & Ohio Railroad Company employer. From an order directing State Industrial Accident Commission to pass an award of compensation to claimant in accordance with finding of jury, the employer appeals.
Affirmed.
D Lindley Sloan, of Cumberland (William A. Gunter, of Cumberland, and E. Stuart Bushong and Irvine H. Rutledge, both of Hagerstown, on the brief), for appellant.
W. Earle Cobey, of Cumberland (E. J. Ryan, of Cumberland, and Wagaman & Wagaman, of Hagerstown, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
This is an appeal by the Baltimore and Ohio Railroad Company, employer, appellant, from an order of the Circuit Court for Washington County, directing the State Industrial Accident Commission (the Commission) to pass an award of compensation to Joseph G. Zapf, employee, appellee, in accordance with the finding of a jury. The jury found that the appellee sustained an accidental personal injury on December 7, 1946, arising out of the course of his employment and further found him to be totally disabled. He was thereby entitled to the sum of $7,500.
The primary question before us is whether the trial court committed error in refusing to grant appellee's A prayer. That prayer follows: 'The Court instructs the jury that there is no evidence in this case legally sufficient to show that the claimant sustained any accident on December 7, 1946, arising out of and in the course of his employment; and, therefore, the answer of the jury on the claimant's first issue must be 'no." We will therefore recite the facts of the case in a manner most favorable to the appellee.
Prior to December 7, 1946, the date of the alleged accident, the appellee, fifty-two years of age, had been employed by the appellant for thirty-one years. For ten years he worked in various departments and then started in appellant's rolling mill. About 1936 or 1937 he was assigned the job of 'hooker' on a rough roller. On the day of the accident half axles, weighing from 325 to 330 pounds each and about nine or ten inches thick and about forty-two inches long, which came from railroad cars, were made red hot and passed through rollers. As the axles came through the rollers, the hooker caught them on an instrument known as a 'spoon,' and with the assistance of a tonger, these axles were raised up so as to run back through the rollers just above those from which they had come. As these axles were red hot it was necessary to handle them quickly to prevent cooling before the rolling was completed. The hook operated by the hooker is supported in the middle by a chain attached to rafters in the ceiling. The hooker holds one end of the hook and the axle is lifted by a spoon on the other end. In the appellee's claim for compensation filed with the Commission he said: 'The accident was caused by lifting a steel axle 325 pounds into the rolls.'
On this day, a Saturday morning, the mill started at 6 A. M. and stopped at noon. The appellee, in his testimony, when asked what happened that Saturday, said: 'I had my hook waiting for it to come out of the second pass, when this axle came out it came out rather straight, I was waiting for it and it cocked and came down on my hook.' He said he was 'on the back end' of the hook at that time and when the axle hit the handle 'it hit on the spoon of the hook and jarred me all over, I felt pain in through my back when anything hit on it, Mr. Bishop missed it when it cocked up, it did not go up in the air, it came down like this'--indicating. The Mr. Bishop, to whom he referred, was the tonger who helped him lift the axles. He said after the particular axle hit the spoon it rolled on the floor. He said: He further said when the axle hit the spoon it jarred him all over and his back 'kept getting sorer.' He said that these axles usually came straight out and it had never happened before, 'not the way I was hurt.' He said nothing about the pain to Bishop.
Appellee further testified that the pains grew worse over the weekend. He returned to work the following Monday and worked all day. He did not return to work on Tuesday. On Monday night he went to see Dr. Zimmerman who taped him up and directed that an X ray be taken of his back. After taking heat treatments in January, 1947, Zapf contracted influenza and was taken to the hospital on February 1, 1947, where treatments on his back were continued. He developed pneumonia complicated by influenza. He was operated on and an abscess over his right kidney was cut and drained.
The evidence further shows that in 1945 he had been treated by two doctors for pain in his back and was told he had pus on the kidney and a lumbro-sacrum strain. He said in about three months he became 'better.' He said from October, 1945, until the date of this accident he had worked continuously without any pains in his back and except for losing six weeks from work on account of a broken finger, and ten or fifteen days on account of pains in his stomach, he had worked continuously all of this time. Dr. Topper testified that when he treated Zapf in 1945 he diagnosed the trouble 'as lower back strain, lumbro-sacrum strain.' He examined Zapf after the accident in December, 1946, and discovered evidence of arthritis.
Dr. Murray, called by the appellee, testified that he examined X ray pictures made of the appellee in July, 1947, and March, 1948, and that the X ray made in 1947 showed arthritis in the lower back. He also testified that an X ray picture was taken on December 10, 1946, at the direction of Dr. Zimmerman, and under questioning on cross-examination by the attorneys for the appellant, Dr. Murray stated in reference to that X ray picture: 'I did not see the picture, according to his report before the State Accident Commission it showed nothing, it did not show any disease or anything of that sort according to his report.' The report referred to was that of Dr. Rathbone.
The appellant contends that because the appellee did not tell his superintendent about the accident until four or five days after December 7, 1946; because in his claim before the Commission on May 27, 1947, he stated: 'The accident was caused by lifting an axle 325 pounds into the rolls'; because he made no complaint to his fellow employee, Bishop; because he told the claim agent that the accident happened when he raised the axle up; and because he testified before the jury that the first time he felt the pain strike him was 'just as I was going down and raised up on the bar,' that the evidence did not show that the appellee sustained an accidental personal injury, within the meaning of the Workmen's Compensation Law, Code Supp.1947, art. 101, § 1 et seq., which caused his present disability. Appellant claims that the accident was caused by lifting the steel axle into the rollers, which was his usual work. Appellant also contends that the evidence of the appellee is too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion. Slacum v. Jolley, 153 Md. 343, 351, 138 A. 244.
Appellant relies strongly on the case of Jackson v. Ferree, 173 Md. 400, 196 A. 107, 108. In that case, involving the occurrence of a hernia, the claimant testified that he was putting the rear wheel on a truck and after he had the wheel partly on the axle it stuck and 'the pain came on.' He 'turned around and in a little while the pain disappeared.' He reported this to his foreman and felt no further discomfort until that evening when he examined himself and 'found 'a lump upon his stomach." On cross-examination he testified that he had put on 'a good many wheels of the same type' that he did not fall, but as he was 'shoving the wheel on it stuck and jarred me and the pain struck me.' In that case this Court, in affirming the granting of a demurrer prayer, offered by the employer, was of opinion that the testimony in that case showed that claimant was subjected to no undue strain or stress or in any manner sustained an accidental injury.
In our opinion there is ample evidence here to submit the issue to the jury. There is absolute testimony from the appellee that the axle, after it 'cocked up,' fell on the spoon and when it so fell it jarred him and caused the pain. He also testified that when the axle accidently fell to the floor and he was trying to raise it into its proper location he felt another pain. In passing upon the demurrer prayer we must accept as true the testimony of the appellee, even though contradicted, in determining whether the issue should be submitted to the jury....
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