Smith v. State Workmen's Ins. Fund

CourtSuperior Court of Pennsylvania
Citation14 A.2d 554
Decision Date19 July 1940
14 A.2d 554

FUND et al.

Superior Court of Pennsylvania.

July 19, 1940.

14 A.2d 555

Appeal No. 97, April term, 1940, from decree of Court of Common Pleas at No. 403, March Term, 1939, Cambria County; Charles C. Greer, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Mary Smith, claimant, opposed by the State Workmen's Insurance Fund and Vinton Colliery Company, employer, for death of claimant's husband. From a judgment of the court of common pleas which affirmed an award of workmen's compensation board in favor of claimant, the State Workmen's Insurance Fund and Vinton Colliery Company appeal.

Judgment reversed and entered for defendants.


S. H. Torchia, Asst. Counsel, of Wilkes-Barre, Ralph H. Behney, Counsel for Ins. Fund, of Harrisburg, and Claude T. Reno, Atty. Gen., for appellants.

Russell R. Yost and Graham, Yost & Meyers, all of Johnstown, for appellee.

HIRT, Judge.

The question raised in this compensation case is whether there is evidence sufficient to support the finding of the referee and the board that the cerebral hemorrhage which caused the death of the employee was induced by an electric shock. It will be helpful to review the testimony somewhat in detail.

Claimant's husband, who had worked for defendant continuously for six years, was employed as a "pumper". The pumps were electrically driven and were distributed throughout the mine. His duty was to see that they were lubricated and to keep them operating so long as there was water to be pumped and to stop them when dry. He worked alone and traveled considerable distances from one pump to another within the mine on a motor car. In apparent good health he went to work in the evening of June 14, 1935. He was found about 6:30 the following morning, by another pumper who had just come on duty, lying face downward between the tracks at the intersection of the Main Heading with the Eleventh Right Heading. There is evidence that he had served all of the thirty pumps on his round except the one in the latter heading and that he had thrown a mechanical track switch on the main line and had diverted his motor into No. 11 heading apparently intending to service the one remaining pump at the foot of that heading. The motor car was found standing partly off the main track with the trolley pole "dogged" down. There is no contention nor evidence that decedent came in contact with the live wires overhead. The workman who found decedent testified: "Q. What condition was he in, conscious or unconscious? A. Conscious.

"Q. Could he talk to you? A. Well, I asked him what was the matter. I asked him a couple of times, and he said, 'I am sick, I am sick.'"

This is the only evidence of anything said by decedent until four days later.

Decedent was removed from the mine at once and was taken to a physician. He was found to be in extreme shock and was then unconscious. The tentative diagnosis was cerebral hemorrhage. At the hospital, to which he was then removed, he regained consciousness four days later and is alleged, immediately, to have made the following statements which were admitted as part of the res gestae over objection. Claimant testified:

"Q. What statement did Mr. Smith make to you immediately upon becoming conscious? A. He was talking about switches and switches and switches. I says, 'What,

14 A.2d 556

do you mean by switches, John?', and he said, 'I pulled a switch and it jerked my arm and then I don't remember what happened.' Those are exactly the words that he said.

"Q. Did he say what switch he was pulling? A. No, he didn't. He didn't say what switch or what kind of a switch, or anything."

Claimant's brother said: "As he came to —he had been muttering up until that time and you couldn't understand anything that he hardly could say—and when he came to, I asked him, 'John, what happened?' He said, 'I was pulling an electric switch and it knocked me and I can't remember anything after that.'"

A patient in a nearby bed testified: "I was lying right across from where John Smith laid and what I heard him say was that he had been at the pumps, taking care of the pumps and he touched this switch...

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7 cases
  • Cody v. S. K. F. Industries, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 25 d4 Maio d4 1972
    ...and Charm School, Inc., 205 Pa.Suepr. 196, 208 A.2d Page 775 294 (1965); Smith v. State, Workmen's Insurance Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940). The utterance must be near in time to the occurrence 1 and to insure trustworthiness it normally must be spoken to one of the first perso......
  • Lusk v. Monongahela City Water Co.
    • United States
    • Superior Court of Pennsylvania
    • 14 d4 Abril d4 1949
    ...than coincidence in point of time is the test in determining admissibility. Smith v. State Workmen's Ins. Fund, 140 Pa.Super. 602, 606, 14 A.2d 554. It is true that claimant's testimony as to the declarations of her husband was in part contradictory. But, under later explanation, any appare......
  • McCurdy v. Greyhound Corporation, 15122.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 18 d2 Maio d2 1965
    ...the Pennsylvania courts. Campbell v. Gladden, supra; Commonwealth v. Noble, supra; Smith v. State Workmen's Ins. Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940); Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56, 58 Examination of the facts before us leads to the conclusion that during the brief ......
  • Ceccato v. Union Collieries Co.
    • United States
    • Superior Court of Pennsylvania
    • 2 d3 Outubro d3 1940
    ...315, at page 318, 10 A.2d 913, and in the recent discussion of the subject by Judge Hirt in Smith v. State Workmen's Ins. Fund, Pa.Super., 14 A.2d 554, (Opinion filed July 19, 1940). See also Watson v. A. M. Byers Co., Pa.Super., 14 A.2d The declaration to Conti may have been admissible und......
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