Rose v. City of Fairmont
| Citation | 140 Neb. 550,300 N.W. 574 |
| Decision Date | 31 October 1941 |
| Docket Number | No. 31239.,31239. |
| Parties | ROSE v. CITY OF FAIRMONT ET AL. |
| Court | Supreme Court of Nebraska |
ROSE
v.
CITY OF FAIRMONT ET AL.
No. 31239.
Supreme Court of Nebraska.
Oct. 31, 1941.
1. A claimant, under the workmen's compensation law, has the burden of establishing, by a preponderance of the evidence, a right to compensation.
2. This burden is not met by surmise or conjecture, nor can it be based upon mere guess, speculation, or possibility, but must be established by sufficient legal evidence leading to the direct conclusion, or a legitimate legal inference, that an accidental injury occurred which caused the disability.
3. Mere exertion which is not greater than that ordinarily incident to cranking a Model T Ford in cold weather, but which exertion, when combined with existing arteriosclerosis, serves to produce coronary thrombosis, does not constitute a compensable accidental injury.
Appeal from District Court, Fillmore County; Bartos, Judge.
Proceeding under the Workmen's Compensation Law by E. M. Rose, compensation claimant, opposed by the City of Fairmont, employer. From an award in favor of the claimant, the employer appeals.
Award reversed, and proceeding dismissed.
Blackledge & Conway, of Hastings, for appellants.
Robert B. Waring, of Geneva, for appellee.
[300 N.W. 575]
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.
PAINE, Justice.
This is an appeal by the city of Fairmont, defendant, from an award given E. M. Rose, plaintiff, under the Workmen's Compensation Law, Comp.St.1929, § 48-101 et seq.
The main facts are not in dispute. It appears that plaintiff, a man 50 years of age, had been water and light commissioner of the city of Fairmont for about 12 years, and was earning $150 a month. Plaintiff is a slender man, weighing 153 pounds, and five feet eight inches tall. The city owned a Model T Ford truck, which was kept in a small lean-to at the back of the plant, and was used by plaintiff and other employees. While this Model T had a starter, it had not been used for several months because it ran the battery down so fast, therefore it was cranked by hand.
On the morning of April 12, 1940, the plaintiff needed to use the car, and with a helper went out and they took turns cranking it, each one turning it over six or seven times at first, then the other taking a hand, and as it worked loose perhaps turning it 15 or 20 complete revolutions at a trial. Finally either the plaintiff or Palmer got it to going. When plaintiff got half way through the cranking operation, he felt a pain in his chest, but did not stop or say anything to Palmer about it, and continued taking his turn at the cranking job.
After the car started, plaintiff drove to the blacksmith shop and got a piece of bar, and the pain in his chest continued, and he sat there a few minutes, and the pain subsided, and he drove the Ford out to the lift station and sewer check, about a quarter of a mile south of the city of Fairmont. When he got down there to the plant where they pump the sewerage out of the city, he went down a perpendicular ladder about 21 feet. Plaintiff testified: “You have to go down a ladder, straight down the side of this thing. And when I opened the manhole cover on top of it and pushed it back the pain started up again, and consequently on the way down the latter (ladder) it got worse. I stayed down there long enough to inspect the machinery and it kept right on hurting and I decided it was about time for me to get home, and I started up. There was a place part way down and I lay there a few moments. I thought it might quit if I lay down and relaxed, but it didn't. Then I climbed on out and got ‘Mr. Ford’ wound up.”
He remained at the sewer station about 20 minutes, and started back to town, and drove home to relax and rest and find out what was wrong, and he said he went in the house, “and as all wives do the wife got quite excited; and the first thing she did was bounce to the telephone and call a doctor.” Dr. Ashby came and examined him in bed, and he laid around home for several months, not able to do any work because he would get dizzy and have a pain in his chest.
Dr. Uridil, called by defendant, testified that a couple of days before the trial in the district court plaintiff came...
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