Laudenklos v. Department of Roads and Irrigation of Nebraska
| Decision Date | 26 February 1937 |
| Docket Number | 30050. |
| Citation | 271 N.W. 790,132 Neb. 234 |
| Parties | LAUDENKLOS v. DEPARTMENT OF ROADS AND IRRIGATION OF NEBRASKA ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. It is a general rule that exposure to cold, resulting in injury is not compensable if it is the same as that to which the general public is exposed.
2. But the rule as applied to the facts in this case is as follows Evidence held to require affirmance of the district court's finding that employee's exposure to cold was special, peculiar danger, greater than that of the general public in the same locality, so that freezing of his hand constituted an " accident arising out of and in the course of his employment."
Appeal from District Court, Dodge County; Spear, Judge.
Proceeding under the Workmen's Compensation Act by Nicholas Laudenklos, Jr., claimant, opposed by the Department of Roads and Irrigation of the State of Nebraska and another. From a judgment awarding compensation, defendants appeal.
Affirmed.
Wm. H. Wright, Atty. Gen., and Paul P. Chaney, and Daniel Stubbs, Asst. Attys. Gen., for appellants.
Robins & Yost, of Fremont, for appellee.
Heard before GOSS, C. J., DAY, PAINE, and CARTER, JJ., and TEWELL and YEAGER, District Judges.
On a trial before the district court the appellee was awarded compensation for disability for a period and in an amount, including his doctor bills, stipulated to be correct if the decree should be affirmed here. The employer has appealed on the theory that the employee did not sustain an injury arising out of his employment so as to entitle him to the benefits of the Workmen's Compensation Law ().
On February 16, 1936, the employee froze one of his hands while helping with about a dozen others to shovel snow from highway No. 91, east of the village of Dodge. He was warmly dressed, having two pairs of double flannel gloves on his hands. The gang had begun shoveling at 8 o'clock in the morning about a quarter of a mile east of town. They removed the deepest snow so as to make a roadway about eight feet wide. The snow removed varied in depth from one to eight or nine feet. They had progressed eastward to a point about two miles from town and were shoveling at the top of a grade, with a northeast wind, when his fingers were found to be frozen and he was taken home by the foreman. Before starting to work that morning the employee testified he had read the thermometer on the post office at Dodge and it indicated fifteen degrees below zero. Fred Hahn, government weather observer, testified that at Fremont that day it was fifteen below zero at 7 o'clock in the morning, six below at noon and eight below at 6 o'clock at night. It is inferable from the evidence that the claimant was in good health and was not susceptible to the influence of cold by reason of any bodily impairment. None of his coworkers was frozen on that particular day.
We have had no previous freezing cases determined under the compensation law. We have had several heat prostration or sunstroke cases. The general rule applied in such cases is that " 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." Herbert v. State, 124 Neb. 312, 246 N.W. 454; McNeil v. Omaha Flour Mills Co., 129 Neb. 329, 261 N.W. 694.The same rule was applied to " snow blindness." Hayes v. McMullen, 128 Neb. 432, 259 N.W. 165.In these cases the accident or injury was held to arise out of and in the course of employment because the employee was found to be subject to a greater hazard than the public generally in the same locality. But in Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739, 46 A.L.R. 1213, an employee, injured by reason of a tornado or cyclone, was held not to be under the protection of the compensation law because the tornado or cyclone affected every one alike in similar circumstances.
So, for precedents in cases produced by cold, we must look to other jurisdictions having provisions similar to our own.
In Ferrara's Case, 269 Mass. 243, 169 N.E. 137, a driver, collecting ashes and taking them to a dump on a cold windy day (the temperature not given) lost fingers due to injuries caused by frost bites. It is true that the men started a fire at the dump and were told by the boss not to do it. It was held that the employee was in fact exposed to greater danger than the ordinary outdoor worker and was entitled to compensation.
In McManaman's Case, 224 Mass. 554, 113 N.E. 287, the opinion affirms a judgment finding that a longshoreman, whose fingers were frozen while he was working at his regular occupation of unloading a steamer at a pier when the thermometer stood at four degrees below zero, was entitled to compensation and that the injury was one arising out of his employment; that he was exposed " to materially greater danger and likelihood of getting his hands frozen than the ordinary person or outdoor worker on the date in question."
In Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, 321, L.R.A. 1916E, 584, the employee (temperature not...
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