Burke v. B. F. Nelson Mfg. Co.

• Decision Date: 09 March 1945
• Docket Number: No. 33954.,33954.
• Citation: 18 N.W.2d 121,219 Minn. 381
• Parties: BURKE v. B. F. NELSON MFG. CO. et al.
• Court: Minnesota Supreme Court

18 N.W.2d 121

219 Minn. 381

BURKE v. B. F. NELSON MFG. CO. et al.

No. 33954.

Supreme Court of Minnesota.

March 9, 1945.

Certiorari to Industrial Commission.

Proceeding under the Workmen's Compensation Act by Charlotte Burke, for the death of her husband, Gerald W. Burke, claimant, opposed by the B. F. Nelson Manufacturing Company, employer. To review a decision of the Industrial Commission awarding compensation, the employer and another bring certiorari.

Writ discharged and order affirmed.

Thomas J. Spence, of St. Paul, for relators.

Horace Van Valkenburg, of Minneapolis, for respondent.

MATSON, Justice.

Certiorari to review a decision of the Industrial Commission awarding compensation to the widow of Gerald W. Burke.

October 5, 1943, Burke, a steam fitter's helper employed by the B. F. Nelson Manufacturing Company, was assisting Frank Galgansky, a coemploye, in washing out a steam boiler. The manhole of the boiler opened out on a wooden platform about 3 feet wide and 16 feet long located about 18 feet from the floor. Galgansky and Burke took turns on alternate days working inside the boiler, because the man inside always became soaking wet. On this day, Burke stood directly outside the manhole and assisted Galgansky, who was inside, by first passing to him an electric drop-cord light and a water hose. Then, from a pipe overhead, he suspended, by means of a wire, a 24-inch fan in front of the manhole to keep Galgansky supplied with cool, fresh air.

When Galgansky had finished the interior washing, Burke moved the fan to one side of the manhole, pulled out the light cord, and then removed the hose. As Galgansky was crawling out through the manhole, he heard a grunting sound like "Uh," and as he looked up he saw Burke standing, with his knees flexed, staring straight in front of him with a fixed look. In his left hand Burke was holding the 30 or 35 pound fan by its cage, and in his right hand he held the wire used to suspend the fan, still attached to the fan cage but disconnected from the pipe overhead. Galgansky slid out as fast as he could and rushed to operate the button switch located in the fan cord about two feet from the fan, but in trying to operate the switch only a buzzing sound resulted. He then gave the fan cord a hard jerk, but Burke still stood clutching the fan. The second jerk, however, severed the cord next to the fan at the point of its entry, and as the cord broke there was a flash at the breaking point. Simultaneously, the lights went out, the fan fell to the floor from Burke's hand, and he collapsed and fell on his side away from Galgansky. Later he was found to be dead. Galgansky, in describing what took place, said: "I was kind of excited, and the fellow was in trouble, and the first thing I thought of was to get the juice off the fan so that he could let go."

The autopsy conducted by Dr. Clauson, University of Minnesota pathologist, in the presence of Dr. Russell R. Heim, Hennepin county coroner, Dr. J. S. McCartney, representing the insurance company, and two other physicians on the coroner's staff, revealed cyanosis grade 2 of the lips and a normal condition of the organs of the body except as hereinafter indicated. The heart revealed grade 2 intimal sclerosis of the root of the aorta and grade 1 intimal sclerosis of the anterior descending and circumflex branches of the left and right coronary arteries. The lumen was open everywhere and no sign of thrombus was found. There were no scars on the myocardium. The lungs showed congestion and an excess of frothy fluid. The diagnosis was: (1) Probably electrocution; (2) acute congestion of organs; (3) old primary pulmonary tuberculosis; (4) silicosis.

It was the opinion of Dr. Heim that the grade 1 and grade 2 scleroses above described, the old primary pulmonary tuberculosis, and the evidence of silicosis could not be assigned as causes of Burke's death. It was his opinion that cyanosis grade 2 may indicate asphyxiation, trouble with breathing, and poor aeration of the lungs. In speaking of the lungs, Dr. Heim said: "* * * The cut surface of the lung showing congestion and excess of frothy fluid could indicate that there could have been a definite labored respiration or changed respiration due to shock and due to depressing of the respiratory center which would cause in a short time asphyxiation and could be the definite cause for * * * improper pumping of the heart. * * * the congestion and excess of frothy fluid would indicate that respiration was interfered with."

The autopsy revealed no evidence of electric burns and no electric tracks in the body muscles or tissues. Dr. Heim, in speaking of the effects of electricity, said: "It may not show anything upon the human anatomy grossly or microscopically and still cause death." He further testified that an electric current shocks the respiratory center, resulting in cessation of respiration with consequent asphyxiation, at which time the heart stops beating. Assuming the truth of the observations made by Galgansky, but not his conclusions, coupled with the findings of the autopsy, it was the opinion of Dr. Heim that the cause of death was probably electrocution, but that electrocution could not be assigned as the definite and certain cause of death in the absence of direct proof that Burke did receive an electric shock.

Dr. R. F. McGandy testified for relators that it was his opinion, based on reasonable medical certainty, that Burke's death could not be ascribed to electrocution in the absence of proof that he had been in contact with electricity through bipolar contact or through unipolar contact coupled with a grounding of the decedent's body. It was his opinion that there could be no grounding of Burke's body while standing on a wooden platform or while in contact with a wooden railing unless the platform or railing were sopping wet and in contact with something like a pipe.

The employer's regular plant electrician, Mr. Paul Tibou, who was out for lunch when the accident happened, about one-half hour after his return tested the fan for short circuits. The test was conducted with the fan standing on a desk or bench and not in a suspended position. He found absolutely no trace of any short circuit, but admitted that it was impossible to determine whether or not the insulation had been defective at the point where the fan cord had been severed next to the fan. He estimated that the cord was of a tensile strength sufficient to support the weight of an average man. He testified that the fan housing was waterproof. Upon cross-examination, he pointed out that water in a sufficient quantity could cause a short circuit where and if a defect in the insulation of both wires existed; and, likewise, that sufficient water in the right place could ground a terminal to the motor frame. In the case of a short circuit, he said that water would soon evaporate from the heat generated by the electric current.

Mr. Hermstad, an outside electrician, was called to the plant the next day to give the fan another test for short circuits. He likewise found no indications of any short circuit. He said he made no particular test of the switch or of the wire. The fan cord, in his opinion, had a tensile strength of about 150...