Herbert v. State
| Decision Date | 20 January 1933 |
| Docket Number | 28616 |
| Citation | 246 N.W. 454,124 Neb. 312 |
| Parties | CLARA H. HERBERT, APPELLEE, v. STATE OF NEBRASKA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Merrick county: LOUIS LIGHTNER JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Death resulting from heat prostration, arising out of employment, under the facts in this case is a personal injury caused by an accident, under the Workmen's Compensation Law of Nebraska (Comp. St. 1929, § 48-101 et seq.).
2. Heat prostration may be a compensable accident, under the Workmen's Compensation Law (Comp. St. 1929, § 48-101 et seq.), if the workman is subjected to a greater hazard from the heat than that to which the public generally in that locality is subject.
Appeal from District Court, Merrick County; Lightner, Judge.
Proceedings under the Workmen's Compensation Act by Clara H. Herbert to recover for death of her husband, John W. Herbert employee, opposed by the State, employer. From a judgment of the district court, on appeal from the compensation commissioner, granting compensation, the employer appeals.
Affirmed.
C. A. Sorensen, Attorney General, and Clifford L. Rein, for appellant.
Herman Ginsburg and Joseph Ginsburg, contra.
Heard before GOSS, C. J., DEAN, GOOD, EBERLY and PAINE, JJ.
This is an appeal by the state of Nebraska upon a proceeding brought by the widow of a deceased employee under the workmen's compensation law, wherein such widow recovered a judgment in the district court for full death and funeral benefits, as authorized by law.
John W. Herbert, aged 71 years, was employed as a cement inspector for the state of Nebraska at $ 135 a month. He went to work at 5:30 a. m. upon June 30, 1931, at which time the temperature was 80 degrees, and suffered a severe heat prostration before noon, and was taken to a hotel in Central City by the engineer in charge, where he died before 6 o'clock the same afternoon.
At the time of the accident, he was working one mile east of Central City, at a cement dock, which was located in a slight depression, having a sand pile just to the east of the dock, averaging 25 feet in height, and up on the west side there was a string of five or six box-cars on a spur track, and on the north there was a built-up roadbed, all of which made it difficult for any breeze to strike him. His duties were to see that the right amount of cement was put into the paving mixture, to test the weight of the steel buggies to see that they all weighed approximately 250 pounds apiece, and also to make cement tests. Considerable cement dust was in the air where he worked, caused by the dumping of an equivalent of 4,650 sacks of cement a day at that dock, and the cement on this job was not shipped in sacks, but shipped as loose cement by the carload. The heat at the place where deceased worked was more intense than at other places where men were working on this job. Before 11 o'clock in the morning, when the temperature was about 98 degrees, deceased suddenly complained of being very ill, and was at once taken to the hotel in town. The wife of the manager of the Ratcliff Hotel testified that he told her when he came in that he was very sick. She testified that he looked ashy, that he refused to eat any food during the afternoon. The manager of the hotel testified that he went up to the room of deceased several times, and that he complained of feeling cramps in his stomach and an awful diarrhea; that he asked for water, and he brought him a pitcher full of cold water; that he was lying flat on his back on the bed; that he had no clothes on, but a sheet over his feet; that about 5 p. m. the deceased was lying just the same, but was waiving his hand, and that when he went up again about 6 o'clock he found that he was dead, and called Dr. Boyd, who testified he found him in the position described, with his face flushed. He testified he had been dead about an hour at that time, and that the cause of death was heat prostration. The testimony of the three medical experts called to testify in the case was that, under the conditions and place of his employment, deceased would be peculiarly susceptible to heat prostration, and would be subjected to risk and hazard greater than that of the ordinary public, and each of the three testified that in their opinion he died of heat prostration. One of the physicians testified that the usual reaction to a heat prostration is that the patient does not realize how sick he is until he goes into a state of collapse. The state produced no medical testimony.
Two errors are relied upon for reversal: First, that the evidence is legally insufficient to show that deceased came to his death by heat prostration; and, second,...
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