Diederich v. Tri-City Ry. Co. of Iowa
| Decision Date | 12 February 1935 |
| Docket Number | 42622. |
| Citation | 258 N.W. 899,219 Iowa 587 |
| Parties | DIEDERICH v. TRI-CITY RY. CO. OF IOWA. |
| Court | Iowa Supreme Court |
Appeal from District Court, Scott County; W. W. Scott, Judge.
Plaintiff was employed by the defendant street car company as one of its motormen. He suffered an accidental injury to his person which arose out of and in the course of his employment. He commenced an action to recover compensation under the Iowa Compensation Act (Code 1931, § 1361 et seq.), alleging permanent total disability. The Industrial Commissioner allowed him partial recovery. He appealed to the district court, which reversed the Industrial Commissioner. From the ruling and order of the district court, the defendant street car company has appealed to this court. Opinion states the facts.
Affirmed.
Lane & Waterman, of Davenport, for appellant.
Bush & Bush, of Davenport, for appellee.
Wilhelm Diederich was a resident of Davenport, Iowa, and employed by the Tri-City Railroad Company of Iowa as a motorman on one of the street cars which the company operated. He had held the position of street car operator or motorman for about thirty years.
It is stipulated in the record that on May 21, 1930, Diederich suffered an accidental injury to his person, which arose out of and in the course of his employment with appellant, and at the time thereof he was working seven days per week and received as wages per day the sum of $5.27. The accident occurred near the intersection of Spring and East River streets, in Davenport, Iowa. It appears that while he was acting in his capacity as motorman, the street car he was operating passed under a viaduct on East River street, the trolley jumped off the wire, and the rope became unfastened. In order to replace the trolley Diederich had to climb up the steps to the top of the street car, and, while replacing the trolley he received a shock which caused him to fall from the top of the street car to the paved street below. The fall rendered him unconscious. He was helped to the doctor's office and from there to the hospital, where certain X-rays were taken. For six days he remained in the hospital, when he was taken home on a stretcher and was thereafter confined in bed continuously for six weeks. After he was able to be up he took heat treatments and then was taken to the hospital, where a plaster cast was applied to and kept on his body for six weeks. He remained under the doctor's care for a period of about seven months, and thereafter was examined at various times by physicians. The medical witnesses seemed to agree that appellee had suffered a fracture of the first lumbar vertebra, the injury being described by some witnesses as a compression fracture, meaning that the vertebra after being fractured was compressed or pushed together. The formation of new bone had caused the first lumbar vertebra to fuse or join with the twelfth thoracic vertebra immediately above it, and with the second lumbar vertebra immediately below it. The resulting fixation is permanent, and causes the three vertebraeto function as a single unit. There is no question but that appellee suffered a great amount of pain; that he has and always will have a stiff back, which limits his ability to turn and bend.
On the 30th day of June, 1931, the appellee filed with the Iowa Industrial Commissioner his petition for arbitration, in which he claimed he was totally and permanently disabled. To this the appellant filed an answer, denying that the claimant was totally and permanently disabled. A hearing was held before the Honorable Ralph Young, Deputy Industrial Commissioner, and a decision was rendered, in which the appellant was ordered to pay the claimant $15 per week for 100 weeks, including the compensation already paid in the case.
Thereafter, on the 15th day of June, 1932, the appellee filed with the Iowa Industrial Commissioner an application for reopening of the case, claiming that he was totally and permanently disabled. An answer was filed by the appellant company denying this, and a hearing was had before the Deputy Industrial Commissioner, in which he increased the disability from 25 per cent. permanent disability to 30 per cent.
From this ruling the appellee appealed to the district court of Scott county. The court, after due consideration, entered an order reversing the decision of the Industrial Commissioner, and entered judgment against the Tri-City Railroad Company for additional compensation at the rate of $15 per week for the remainder of 400 weeks, as provided by Code, § 1395, after allowing credit for the 99 payments theretofore made under the original order of the commissioner.
The railroad company, being dissatisfied with the judgment and order of the district court, has appealed to this court.
The appellant assigned as error that the commissioner's findings of fact are conclusive upon the lower court, and the district court had no jurisdiction to review the evidence and to make findings.
In a very recent decision, this court said, in the case of Almquist v. Shenandoah Nurseries, 254 N.W. 35, at page 37 :
The court then quoted a part of that section, and said:
On the same page it is said: ’
On the next page the court said: " When the industrial commissioner's finding, however, is not supported by the evidence, and when, on the other hand, the evidence is without conflict and all of it is against the conclusion reached by him, then the courts may interfere and modify, set aside, or reverse his ruling, as shown by the cases above indicated."
The court then fully reviewed the evidence, and said: ...
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