Keller v. Electric Wiring Co., 308

• Decision Date: 10 April 1963
• Docket Number: No. 308,308
• Citation: 259 N.C. 222,130 S.E.2d 342
• Parties: James R. KELLER, Employee, v. ELECTRIC WIRING COMPANY, Inc., Employer, and New Amsterdam Casualty Company, Carrier.
• Court: North Carolina Supreme Court

Page 342

130 S.E.2d 342

259 N.C. 222

James R. KELLER, Employee, v. ELECTRIC WIRING COMPANY, Inc., Employer, and New Amsterdam

Casualty Company, Carrier.

No. 308

Supreme Court of North Carolina.

April 10, 1963

John H. McMurray, Morganton, for plaintiff-appellant.

Patrick, Harper & Dixon, by F. G. Harper, Jr., Hickory, for defendants-appellees.

HIGGINS, Justice.

The Superior Court judgment was based on the court's conclusion as a matter of law that the evidence was insufficient to support a finding that the claimant suffered an injury by accident arising out of and in the course of his employment. It is the duty of the court to determine whether, in any reasonable view of the evidence, it is sufficient to support the critical findings necessary to permit an award of compensation. The court does not weigh the evidence. That is the function of the Commission. If there is any evidence of substance which directly, or by reasonable inference, tends to support the findings, the courts are bound by them, 'even though there is evidence that would have supported a finding to the contrary.' Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175. The rule is simple. The difficulty arises in its application to cases in that twilight zone between what is clearly sufficient and what is clearly insufficient. This is such a case.

The claimant, 40 years of age, weighing 230 pounds, an ex-army heavyweight boxing champion, was employed as an apprentice mechanic and engaged at the time of his injury in digging a ditch for the installation of a wiring conduit. He testified: 'On March 17, 1961, I was digging ditches and laying conduits, staying ahead of the cement men. The specifications of the ditch * * * 12' wide by 14' deep. * * * I was injured around 12 o'clock. * * * At this particular time I came to a rock in the ditch * * * the ditch was approximately 14' deep. * * * To loosen the rock I dug around it with a shovel and pick. * * * At this time I got the rock loose * * * bent down to pick the rock up. As I did I twisted to heave the rock out of the ditch and I had a catch in my back. I pitched over on my back and I guess I laid there approximately five minutes before I could move. * * * I lifted the rock approximately up to my knees, maybe a little bit better. I had to heave it out of the ditch * * * My feet were in the ditch * * * The rock weighed approximately 50 to 100 pounds. * * * At the time I was hurt there were no other employees of Electric Wiring Company on the job.'

The claimant reported his injury and thereafter upon advice of the employer consulted a physician who placed him in traction for several days, but later referred him to Dr. Powers, an orthopaedic surgeon, who performed an operation which disclosed, 'A completely ruptured disc at the fourth interspace.' Claimant was Dr. Powers' patient in the Presbyterian Hospital in Charlotte from April 28, 1961, to May 20, 1961, at which time he was discharged from the hospital. Dr. Powers testified: 'It was a complete rupture. The material from the disc had broken through the covering and was lying in the interspace pressed against the nerve, * * * My opinion is that the disc symptoms and rupture were caused by the lifting episode which the patient described to me. * * * Twisting or his flex * * * does increase the pressure on the disc, * * * because of the increased leverage against the spine. * * * There was no evidence of pre-existing condition here so far as I know.' * * *

'If you are lifting with your back straight and using your legs there isn't near the pressure against the disc that there is if you are bent forward, depending on the back muscles as a counterbalancing agent to do the lifting.'

This case falls in a category different from Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395; Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109; Turner v. Burke Hosiery Mill, 251 N.C. 325, 111 S.E.2d 185; Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614; and Hensley v. Cooperative, 246 N.C. 274, 98 S.E.2d 289. In Bellamy there was no evidence the heart attack grew out of the employment. In Harding the claimant was engaged in transporting...