Donker v. Central West Public Service Company

• Decision Date: 10 June 1938
• Docket Number: 30356
• Citation: 280 N.W. 168,134 Neb. 892
• Parties: WILLIAM DONKER, APPELLEE, v. CENTRAL WEST PUBLIC SERVICE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

280 N.W. 168

134 Neb. 892

WILLIAM DONKER, APPELLEE, v. CENTRAL WEST PUBLIC SERVICE COMPANY ET AL., APPELLANTS

No. 30356

Supreme Court of Nebraska

June 10, 1938

APPEAL from the district court for Dakota county: MARK J. RYAN JUDGE.Affirmed.

AFFIRMED.

Syllabus by the Court.

1." Cogent reasons and circumstances that strengthen the opinion of expert witnesses as to a scientific fact in issue and tend to weaken opposite expert opinions may determine the issue."Montgomery v. Milldale Farm & Live Stock Improvement Co.,124 Neb. 347, 246 N.W. 734.

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."Cunningham v Armour & Co.,133 Neb. 598, 276 N.W. 393.

3.Evidence in the record examined, and held ample to support the findings and judgment of the district court.

Appeal from District Court, Dakota County; Ryan, Judge.

Proceeding under the Workmen's Compensation Act by William Donker, claimant, against the Central West Public Service Company, employer, and the American Mutual Liability Insurance Company of Boston, Mass., insurance carrier.From an award for temporary total disability, the employer and its insurance carrier appeal.

Affirmed.

Brown, Fitch & West and George W. Leamer, for appellants.

Bliven & McKinley, contra.

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

OPINION

EBERLY, J.

This is an appeal in a workmen's compensation case by the Central West Public Service Company, a corporation, and its insurance carrier, from an adverse finding and judgment.The judgment appealed from awarded William Donker, employee, the sum of $ 10.27 each week from and after January 3, 1936, for temporary total disability, for a period not to exceed 300 weeks, less, however, the amount of $ 10.27 each week for 17 weeks, or the sum of $ 174.59 previously voluntarily paid to the employee in behalf of appellants.Certain claims for medical services were also allowed.

The appeal presents a limited field for investigation.The appellants admit the employment of plaintiff, the rate of his wages, the occurrence of the accident on January 3, 1936, arising out of and in the course of his employment, and that in said accident, "plaintiff slipped and fell, causing an injury to his coccyx," and "that compensation has been paid by defendants from January 4, 1936, to May 1, 1936, at the rate of Ten and 27/100 Dollars ($ 10.27) per week."So, the only questions for determination are the extent of the injuries then received by plaintiff and the nature of the disabilities occasioned thereby.

The plaintiff, a man of 46 years of age and weighing a little less than 200 pounds at the date of the accident, had been employed by the Central West Public Service Company at Crystal Lake, Dakota county, Nebraska.He was engaged in running an "ice marker."He testified that on this day, January 3, 1936, "turning around in the ice marker, I went to pull back on it to line it up; and when I pulled back my feet went out from under me and I fell," that he lit on his body, "a little ways above my hips," and "somewhere near the small of the back."Further, that he could not get up at first and lay there awhile; that he then got up but found he could not continue his work; that his legs got kind of numb and there were pains in his legs and back; that he walked around for a while and tried to continue his work but found he could not; that his foreman on the ice then sent him to the tool house, where the company timekeeper then dressed a superficial wound he had received on one of his legs, then called a car from the plant over at Sioux City, and took him over to Dr. Charles Katherman of Sioux City; that this doctor treated him for six or seven weeks, and his pains continued, and on April 12, 1936, Dr. Katherman operated on plaintiff and removed the coccyx, and continued to care for him until the last week of April, 1936, when plaintiff was informed by this doctor that all had been done for him that could be done, and that "he was going to release"plaintiff.This doctor then advised plaintiff to do something by way of exercise that would limber up his limbs.At that time plaintiff had a burning sensation up and down his spine that never left him.His "legs were numb and felt like a lot of needles were sticking in my leg--asleep like."About May 20, 1936, plaintiff employed Dr. Graham of Sioux City, Iowa, who prescribed a brace for the lower part of the body, and treated him until about August 19, 1936.Plaintiff's pains continued and he seemed to be growing worse, and Dr. Graham also prescribed exercises, but the effect of taking them was to "put me all in."Plaintiff then entered the Veterans' hospital in Lincoln, where, under the personal charge of Dr. H. Winnett Orr of Lincoln, Nebraska, he was treated from the 19th of August to the 3d day of November, 1936.Here plaintiff's tonsils were removed and some teeth were extracted.He was kept in a cast for five weeks and then given a brace to wear, which he still uses continuously, and without which he is largely deprived of control of the lower part of his body.He was released from the Veterans' hospital on November 3, 1936.At the trial plaintiff testified, viz.: "I haven't got much use of my limbs, and have that burning sensation of the spine, and those places on the back, and my hip pains me all the time."My legs are "still numb.My left leg is worse than the right one.There isn't much feeling in it."So far as exercise is concerned, plaintiff attempts to walk up town and back, once a day, ten blocks altogether.He can do no more now.

Later plaintiff employed Dr. Neil of Sioux City, who continued to care for him up to the date of the trial in the district court.During the month preceding the trial, he returned to Lincoln and was examined by Dr. Orr.

Plaintiff testifies that prior to this accident of January 3, 1936, he engaged in "all kinds of manual labor, shoveling coal, digging basements, hauling dirt, stacking hay, and all such work as that," and that he never had any trouble with his back before.Even when he worked all day shoveling coal, he testifies that prior to this accident he never experienced any pain or discomfort in his back.As to plaintiff's physical condition prior to ...