Rose v. City of Fairmont

• Decision Date: 31 October 1941
• Docket Number: 31239
• Citation: 300 N.W. 574,140 Neb. 550
• Parties: E. M. ROSE, APPELLEE, v. CITY OF FAIRMONT, APPELLANT
• Court: Nebraska Supreme Court

300 N.W. 574

140 Neb. 550

E. M. ROSE, APPELLEE, v. CITY OF FAIRMONT, APPELLANT

No. 31239

Supreme Court of Nebraska

October 31, 1941

APPEAL from the district court for Fillmore county: STANLEY BARTOS JUDGE. Reversed and dismissed.

REVERSED AND action DISMISSED.

Syllabus by the Court.

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, for appellant.

Robert B. Waring, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ. CARTER, J., concurring in the result.

OPINION

PAINE, J.

This is an appeal by the city of Fairmont, defendant, from an award given E. M. Rose, plaintiff, under the workmen's compensation law.

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, 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 relax, 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 to his office in Hastings to be examined, and that he also read the testimony of Dr. Ashby and Dr. Covey. He testified that plaintiff's blood pressure was rather low, 105/86. His heart was moderately enlarged, sounds were "close rhythm or tick-tock rhythm;" that the plaintiff had a slight hardening of the arteries immediately under the skin. Dr. Uridil said the heart would recover itself if given time and not abused, but that he would never have a complete normal recovery, although he might be able to walk about and supervise, and do manual work if he did not overload his heart. Dr. Uridil was asked to assume that plaintiff had a coronary thrombosis on April 12, 1940, and to state the cause of it. He said that coronary thrombosis cannot occur in a normal healthy artery. There must be some diseased condition and arteriosclerosis is a normal changing in the arteries, which does not happen all at once, and may be rapid or gradual in its onset.

It was perhaps 45 minutes from the time of the alleged accident until Dr. Ashby was called to plaintiff's home. Dr. Ashby testified that he found him in bed, that he was in a semiconscious condition, and after administering a stimulant he could hear his heart beat, and took his blood pressure, which was very low, 85/60; that plaintiff told him that when he got down in the pit he thought he was not going to get out, but he did get out and drove home, and probably suffered a collapse after he got home; that he suffered a dilatation. He said that after a few days plaintiff said he felt as well as he ever did, or gradually returned to normal. His pulse went down to around 70, and he advised plaintiff to go down and see Dr. Covey at Lincoln.

In his deposition Dr. George W. Covey testified that plaintiff consulted him on May 1, 1940, in his office at Lincoln. His principal complaint was of a recent attack of pain in his chest and prostration. In getting the history of the case, he found that he had had influenza during November, 1939, and again in January, 1940. Dr. Covey's examination consisted of a fluoroscopic examination of the chest under X-ray and electrocardiograms. The examination showed that plaintiff was suffering from the effect of coronary thrombosis, with resulting pericarditis. In giving a number of causes that could have caused the coronary thrombosis, such as plaintiff suffered on April 12, Dr. Covey made this answer: "Coronary thrombosis occurs usually under one or two conditions; either occurs while the patient is resting and perhaps asleep, or occurs when he is exerting himself, either ordinarily with some other factor entering in, like temperature or state of the digestive tract or actual amount of exertion he is undergoing in relation to what is usual for him. Those are the two large groups in which coronary thrombosis occurs."

The district court allowed $ 15 a week from April 12, 1940, for 25 1/4 weeks, and allowed $ 7.50 a week for a period of 274 3/4 weeks, and allowed $ 10 a week thereafter so long as permanent partial disability continues. In addition, it allowed an attorney's fee of $ 100, to Dr. Ashby, $ 177, to Dr. Covey, $ 35, and to a nurse, $ 5.

In Shamp v. Landy Clark Co., 134 Neb. 73, 277...