Cunningham v. Armour & Co.

• Decision Date: 10 December 1937
• Docket Number: 30200.
• Citation: 276 N.W. 393,133 Neb. 598
• Parties: CUNNINGHAM v. ARMOUR & CO.
• Court: Nebraska Supreme Court

276 N.W. 393

133 Neb. 598

CUNNINGHAM v. ARMOUR & CO.

No. 30200.

Supreme Court of Nebraska.

December 10, 1937

Syllabus by the Court.

1. In a workmen's compensation case, it is incumbent on the plaintiff to prove his case by a preponderance of the evidence.

2. Where the evidence is conflicting and cannot be reconciled this court, upon a trial de novo in a workmen's compensation case, will consider the fact that the district court observed the demeanor of witnesses and gave credence to the testimony of some rather than to the contradictory testimony of others.

Appeal from District Court, Douglas County; Dineen, Judge.

Proceeding under the Workmen's Compensation Act by Arthur B Cunningham, claimant, opposed by Armour & Company, employer. From a judgment awarding compensation, the claimant appeals.

Judgment affirmed.

John C. Barrett and Fred J. Schwertley, both of Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, of Omaha, for appellee.

Heard before GOSS, C. J., EBERLY, DAY, PAINE, CARTER, and MESSMORE, JJ., and TEWELL, District Judge.

GOSS Chief Justice.

Arthur B. Cunningham appeals because dissatisfied with a compensation award made in the district court. On August 6, 1934, plaintiff was working as a plumber or steam-fitter in the basement below the engine room at the packing plant of Armour & Company at South Omaha. There is no question that he was an employee and, if injured, was injured in the course of his employment.

About 10:30 on the morning named, a pipe (containing ammonia under pressure) on the outside of the building in which plaintiff was working, and about 35 feet above the ground level, broke and caused ammonia fumes to enter the building. When plaintiff realized this, he started to escape and make his way to the outside. This necessitated traveling a considerable distance through the plant. Just before he reached a door to the loading dock, where he would be outside in fresh air, he fell and attracted the attention of two other employees. They supported him, one on either side, and he walked to the first-aid room, where they left him. The nurse received him and he sat in a chair until she finished the work on which she was then engaged. She testified that he had a slight redness on his neck, chin and lips and his face and forehead were slightly red. He was coughing some and nervous. She applied ointment, bandaged him with gauze, called the ambulance and sent him to the Lutheran Hospital for observation by Dr. Kirk, the company physician.

Plaintiff was discharged from the hospital August 18, 1934, and went home. Dr. Kirk is on the staff of the Lutheran Hospital. He testified that he was at the hospital when plaintiff was brought there by the ambulance in the forenoon of August 6, 1934; that his temperature on admission was normal and at 1:30 p. m. that day his temperature was 99, his pulse was 80; an examination showed no evidence of injury to the mucous membrane of the nose and throat, no injury to his eyes, the lungs were clear and the physical examination was essentially negative; again he saw him at 3 p. m. and he was sleeping; after awakening, his temperature was taken, at which time it was 98, his pulse was 80 and respiration was 18, all practically normal; that the next morning he found plaintiff had rested well the night before and the head bandages were removed and his face was examined for the first time; that he found only a slight redness, no blister, and it was not necessary to reapply the bandages,--merely to apply an ointment over those reddened areas.

It would take unmerited space to state all the evidence, which we have carefully read. When Cunningham was first confined in the hospital he had chills and muscular twitchings. Later from time to time, he offered to show these twitchings, which he sometimes could produce voluntarily and sometimes failed to produce. He was offered the services of any doctor he might name and was examined by quite a number of local specialists from time to time. He was tendered the services of the Mayo Clinic at Rochester, Minnesota, but chose to go to Chicago, to be examined by Dr. Solomon, a neurologist and psychiatrist of that city. He went to Chicago, at the expense of the company, and chose to go to a hospital rather than to a hotel, both of which were tendered. He was given a preliminary examination by Dr. Alfred P. Solomon at the doctor's office and then went to the hospital, where the doctor arranged to examine him further. There, after he took his room, an interne arrived to take the necessary history and had commenced to do so when Cunningham abruptly left the hospital and took a train home. The...