Mead v. Missouri Val. Grain, Inc.

Decision Date26 March 1965
Docket NumberNo. 35924,35924
Citation134 N.W.2d 243,178 Neb. 553
PartiesWalter MEAD, Guardian of Ralph Mead, Incompetent, Appellee-Cross-Appellant, v. MISSOURI VALLEY GRAIN, INC., Appellant-Cross-Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. The general rule is that injury by freezing is compensable where the employee's exposure is greater than that of the general public in the same locality.

2. It is not necessary that an employee be exposed to risk greater than other employees in the same or similar employment in order that an injury may be compensable but the question is whether in the performance of his duties he was exposed to the dangers to a greater extent than the ordinary person in such locality.

3. It was clearly the intent of the Legislature in establishing a schedule of benefits for the specific injuries listed in subdivision (3) of section 48-121, R.R.S.1943, to fix the amount of such benefits without regard to the extent of the subsequent disability with respect to the particular work or industry in which the employee was engaged at the time of his injury.

4. However, where an employee has suffered a schedule injury to some particular member or members and some unusual and extraordinary condition develops therefrom as a result thereof, which condition affects some other member or the body itself, an increased award is proper and should be made to cover such additional disability.

5. A workman who, solely because of his injury, is unable to perform or to obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled within the meaning of the Workmen's Compensation Act.

6. It is within the sound discretion of the court to permit a party to withdraw his rest and introduce additional testimony.

Pilcher, Howard & Hickman, Omaha, for appellant.

Betty Peterson Sharp, Nebraska City, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

WHITE, Chief Justice.

The Nebraska Workmen's Compensation Court and the district court awarded Ralph Mead, hereinafter referred to as plaintiff, compensation for disability resulting from frozen feet and subsequent amputations. The defendant appeals.

The temperature in Nebraska City on January 28, 1963, varied between 12 degrees below to 7 degrees above zero. Plaintiff was 52 years old and in good health. He went to work at 7 a. m., sealing (coopering) box cars for grain shipment and was dressed warmly, with two pair of socks, engineer boots, and two-buckle overshoes on his feet. The box cars were unprotected, with one or both doors open, were unheated, and the wind blew through them. They were elevated with the cold air circulating above and below the surface on which the plaintiff worked. Plaintiff sealed or coopered eight box cars. This consisted of nailing board and other material on the doors and required mostly a standing operation by the plaintiff accumulative to many hours of such standing during the day. There were six men on the job, and when they reported, there was objection to working because of the extreme cold. The manager ordered the work done stating that it was pretty cold but there was a shipping order and the cars had to go out. At about 9 a. m., plaintiff's feet started stinging and hurting. He would walk and stomp on them. In the afternoon, they got worse and he continually complained to fellow employees about them. The men could and did warm themselves in the office from time to time, but the plaintiff did not. Plaintiff had difficulty getting out of the last box car because his feet were stinging and were stiff. The men guit work at 6 p. m. Plaintiff arrived home at 8 p. m., and had walked about half a mile in the intervening period. At home, he undressed, found ice between his boots and overshoes, and his two pair of socks were frozen hard. His feet were frozen, were red and stiff, got redder, and he used kerosene on them. He suffered pain, the pain got worse, and he took aspirin. He did not go to work the next day and stayed at home. He was admitted to the hospital 2 days later, became delirious, and suffered toxinemia. The diagnosis was acute frostbite. The tissues and bones were both frozen. It was apparent from the outset that amputations would be necessary, and treatment was for the purpose of setting a demarcation line. In April, the toes and head of the metatarsal of the right foot were amputated and the left foot was amputated above the ankle. He was in the hospital for 6 months, was fitted with prosthetic devices for both feet, uses crutches to walk, and has a continuing ulcer on the right heel. A blood sugar condition had developed. Mead had a high pain tolerance level. He is a common laborer, his weight-bearing capacity and center of gravity have been affected and interrupted, and his ability to bend, lift, stoop, kneel, or twist has been impaired. He cannot carry loads, and he cannot perform common labor at all. The opinion of the plaintiff's doctor as to causation, which is the only one in the record, is that the freezing occurred during the working hours on January 28, 1963, producing plaintiff's present disability. None of the other workmen on the job January 28, 1963, suffered any freezing.

Defendant contends that plaintiff did not prove that he sustained an accident arising out of and in the course of his employment. The general rule is that injury by freezing is compensable where the employee's exposure is greater than that of the general public in the same locality. Laudenklos v. Department of Roads & Irrigation, 132 Neb. 234, 271 N.W. 790; McNeil v. Omaha Flour Mills Co., 129 Neb. 329, 261 N.W. 694; State ex rel. Nelson v. District Court of Ramsey County, 138 Minn. 260, 164 N.W. 917, L.R.A.1918F, 921; State ex rel. Virginia & Rainy Lake Co. v. District Court of St. Louis County, 138 Minn. 131, 164 N.W. 585, L.R.A.1918C, 116; Yellow Cab Co. v. Industrial Commission, 210 Wis. 460, 246 N.W. 689; Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, L.R.A.1916E, 584; Riley v. City of Boise, 54 Idaho 335, 31 P.2d 968; 99 C.J.S., Workmen's Compensation, § 188, p. 648; 58 Am.Jur., Workmen's Compensation, s. 260, p. 760. As the above authorities note, the difficulty arises in the application of this rule to the facts, and there is a diversity of opinion that will support opposite conclusions in many cases such as this one. Factual color matching of cases gives us little help. We are of the opinion that the plaintiff is within the above rule and that his exposure or peril was greater than that of the public generally. We are of the opinion that the plaintiff's exposure was special, peculiar, and greater than that of the general public. He was required to work in open, unprotected, and elevated box cars in temperatures ranging to 12 degrees below zero while standing most of the time at his work, the normal movement and activity in response to low temperatures being limited by the requirements of the job. Nor are we unmindful of the fact that a fair inference from the evidence is that, except for the urgency of the shipping requirements of the employer, the employees would not have been called or required to work. The employees themselves protested, but the employer insisted on the work being performed. The general normal public exposure to outside weather conditions does not reach the special combination of conditions to which the plaintiff was required to be exposed by the particular conditions of this employment. We take judicial notice of the fact that the general public and the community may be exposed to outside temperatures, but certainly are not generally exposed to a combination of conditions of outside work such as present here.

There is no evidence that general construction work in the community, or work of this type, is generally conducted at the temperatures and under the conditions present in this case. The risk of the cold was common to all outside, but the required conditions of this employment brought a danger and a peculiar aggravated risk which threatened more particularly the employees of defendant, of which plaintiff was one. See, Nelson v. Creamery Package Mfg. Co., 215 Minn. 25, 9 N.W.2d 320; Riley v. City of Boise, supra; State ex rel. Nelson v. District Court of Ramsey County, supra; Nikkiczuk v. McArthur, 9 Alberta L. R. 503, 28 Dom. L. R. 279.

Defendant, citing cases, argues that the other employees did not suffer from freezing and that plaintiff's risk was no greater than that of his fellow employees. We reject this defense as it was rejected in the Laudenklos case, supra. We point out further that if the plaintiff was peculiarly susceptible to frostbite, this would not be a defense. The law does not penalize the thin skinned.

Defendant, citing cases, argues that plaintiff failed to warm himself from time to time. But, plaintiff violated no instructions and kept diligently on the job. The employer had told him that the box cars had to be coopered in spite of the cold. Now, the employer claims that the plaintiff was negligent in not leaving the job to warm himself, but it is not contended that he willfully exposed himself or was guilty of willful misconduct, which would be a defense. Section 48-102, R.R.S.1943. Nor is it contended that he knew, during the working hours, that his feet were frozen. He is not required to take the precautions which others might have and did take. There is no merit to this...

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11 cases
  • Jeffers v. Pappas Trucking, Inc., 40826
    • United States
    • Supreme Court of Nebraska
    • April 27, 1977
    ...other part of the body has developed," he may be compensated under subdivision (1) or (2) of section 48-121. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). See, also, Runyan v. Lockwood Graders, Inc., supra; Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1......
  • Kraft v. Paul Reed Const. & Supply, Inc., 90-1202
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    • Supreme Court of Nebraska
    • October 11, 1991
    ...of injuries to specific members" are compensable only according to the fixed statutory member schedule. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 559, 134 N.W.2d 243, 248 (1965). In addition to physical impairments, psychological injuries are compensable. See, Johnston v. State, 21......
  • McGinn v. Douglas County Social Services Administration, 44368
    • United States
    • Supreme Court of Nebraska
    • March 26, 1982
    ...than merely greater than that to which the public generally is subjected. We encounter the rule again in Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). In Mead the employee was required to seal boxcars in temperatures which varied between 12 degrees below to 7 deg......
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    • United States
    • Supreme Court of Nebraska
    • October 12, 1977
    ...not limited to recovery under subdivision (3) of that section. See, Jeffers v. Pappas Trucking, Inc., supra; Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). In the present case the plaintiff does not contend that he falls within the exception to the general rule th......
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