Snowardt v. City of Kimball

• Decision Date: 26 October 1962
• Docket Number: No. 35290,35290
• Parties: William A. SNOWARDT, Appellant, v. The CITY OF KIMBALL, Kimball County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 543

117 N.W.2d 543

174 Neb. 294

William A. SNOWARDT, Appellant, v. The CITY OF KIMBALL, Kimball County, Nebraska, Appellee.

No. 35290.

Supreme Court of Nebraska.

Oct. 26, 1962.

Syllabus by the Court.

1. Triers of fact are not required to accept as absolute verity every statement of a witness not contradicted by direct evidence. The persuasiveness of the evidence may be destroyed even though not contradicted by direct evidence.

2. In order to recover, the burden of proof is upon the claimant in a workmen's compensation case to establish by a preponderance of the evidence that personal injury was sustained by the employee by an accident arising out of and in the course of his employment.

3. Where there have been two accidents to an employee, the question of whether the disability sustained by him should be attributable to the first accident or to the second accident depends on whether or not the disability sustained was caused by a recurrence of the original injury or by an independent intervening cause.

4. Where the first accident is not the proximate cause of the second accident, the second accident constitutes an independent intervening cause.

5. The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim by virtue of the law.

6. An award of compensation under the Workmen's Compensation Act may not be based on possibilities, probabilities, or speculative evidence.

Heaton & Heaton, Sidney, for appellant.

Halcomb, O'Brien & Everson, Harry R. Meister, Kimball, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

SPENCER, Justice.

This is a workmen's compensation case. The plaintiff sought medical expenses and compensation for an injury allegedly sustained on September 6, 1959, while employed as a policeman by the city of Kimball. The one-man compensation court found that plaintiff sustained a temporary disability as the result of the accident on that date but that his present disability is the result of a subsequent accident which had no connection with his employment. Plaintiff elected to appeal directly to the district court for Kimball county.

After a trial in the district court, specific findings were made that the plaintiff had suffered a back injury in other employment August 20, 1956; that he had sustained a temporary disability involving no compensable loss of time in an accident on September 6, 1959; and that subsequently, on October 27, 1959, he suffered another accident outside of his employment. The court further found that the plaintiff had failed to maintain the burden of proving that the accident of September 6, 1959, was the proximate cause of his present disability, and allowed him a recovery only for the medical expenses incurred between the time of the accident on September 6 and September 25. From this judgment plaintiff appeals to this court. The cause is here for trial de novo on the record. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51.

William A. Snowardt, hereinafter referred to as the plaintiff, on September 6, 1959, was 40 years of age, was 6 feet 2 inches tall, and his normal weight was 245 pounds. He was employed as a night policeman for the city of Kimball at a salary of $315 per month. About 1 a. m. on that day, while patrolling with another officer, he came upon two drunks who were fighting near a tavern and dance hall located within the city limits of Kimball. One of the men, weighing about 160 pounds, had his arm around the neck and throat of the other man and was choking him. Plaintiff, in attempting to break the hold, lifted the man off the ground that 6 inches, at least twice. He testified that on this occasion he experienced a sharp stabbing pain in his back and released his hold. He then struck the man with the side of his hand on the jaw, broke the hold, and made an arrest. He continued to work the rest of the night. The next morning at 8 o'clock, when he picked up the chief of police, he told the chief of the incident.

Plaintiff testified that he was in severe pain when he went home that morning and that his wife used a heat lamp on his back to relieve the pain. The testimony of the wife is to the effect that, as she remembers, she used the heat lamp for 3 successive days. She also testified plaintiff could not bend down and she had to help him put on his socks and pull up his trousers. Plaintiff further testified that he experienced continuous pain thereafter but did not consult a doctor for a week or 10 days. The medical evidence is that a doctor was not consulted for 17 days, or until September 23, 1959, at which time plaintiff made an office call on Doctor Siedenburg of Kimball. On that same day he also consulted a chiropractor at Pine Bluffs, Wyoming. He made office calls on Doctor Siedenburg again on the 24th and 25th of September. The doctor gave him medication and physical therapy, and advised him to wear a wide belt.

On the 27th of October 1959, plaintiff was helping a neighbor put an extension on a TV antenna on the top of a trailer house. When he lifted the extension it became tangled in some electrical wires and the plaintiff was knocked unconscious. When he regained consciousness, he was lying flat on his back on the top of the trailer house. He did not know with what force he was knocked down. This electrical shock burned holes in both of his heels about the size of the tip of his little finger. A doctor was called, but by the time he arrived plaintiff had recovered consciousness and there was very little treatment given. Plaintiff did not see his doctor thereafter. On October 29, he consulted Doctor Siedenburg who treated the burns and sores on his feet. He consulted Doctor Siedenburg again on the 4th, 5th, 6th, and 7th of November, and so far as the record indicates, the treatment given was confined to the feet. Doctor Siedenburg testified as follows concerning this period: 'Q Doctor, from the first visit to your office in the latter part of October, until he was hospitalized in November, did he at any time ever complain to you about back pains or problems to his back? A From what date? Q From the time he came in to see you the latter part of October, until he was admitted to the hospital? A Yes. He started complaining of his back while I was treating him for his feet. Q Do you recall specifically what those complaints were? A Well, when I first put this ointment on the soles of his feet, it worked real well, but then, the next day it didn't work as well, and the next day after that, not quite as well; because he was beginning to try to walk without putting his weight on his heels, and as he did that, he developed more and more backache. Q What do you mean by walking without putting the weight on his heels? A Well, you walk on the ball of your foot and try to take the weight on the front part of your foot rather than your heel. Q Is that what Mr. Snowardt was doing? A That is my understanding. He was trying to take the weight off the soles of his feet by putting more of it on the balls of the foot. Q In other words, he was balancing himself in an unnatural position, physically? A That's right. Q Now, did he do that continually until he was admitted to the hospital--the walking in this unnatural position? A Yes, he did. Q What was he admitted to the hospital for? A For back pain--severe back pain, radiating down in the right leg.'

Plaintiff was admitted to the Kimball County Hospital on November 8, 1959, and placed in traction. He was released from the hospital on November 22. On November 23 his difficulty returned, and he was referred to a neurosurgeon and admitted to the DePaul Hospital at Cheyenne, Wyoming, where he had surgery. Doctor Grizzle, the neurosurgeon who performed the surgery, testified plaintiff had sustained an injury to his intervertebral disc which allowed it to protrude. Plaintiff was released from DePaul Hospital on December 4, 1959, and returned to work about April 1, 1960.

In 1956, while doing construction work for another employer, plaintiff hurt his back. He was taken to a medical clinic. The doctor told him he thought the vertebrae were injured, and injected some medicine around the area of the injury and gave him some pills. He later went to a chiropractor, who X-rayed his back and told him two vertebrae had slipped out and were pinching a nerve. The chiropractor gave him four or five treatments thereafter. On this occasion, plaintiff missed 2 days of work, and thereafter on this job did only light work. He quit after 10 days and went back to a previous employer, Solomon Mills at Buda, Nebraska, working 7 days a week.

Doctor Calkins, a Kimball physician, testified the plaintiff consulted him on November 13, 1958, for back pain. The doctor's record has a notation under that date, 'Low Flank & back pain.' The doctor testified he treated the plaintiff on that occasion, but the plaintiff denied ever consulting him. Doctor Calkins was treating other members of the family, including Mrs. Snowardt who was pregnant. Her record was kept on a separate card, and this record designates 'Mr.' rather than 'Mrs.' and lists the plaintiff's correct age. This testimony is not material on the question of injury, because there could be recovery if plaintiff proved the activation or aggravation of a preexisting injury. Maul v. Iowa-Nebraska Light & Power Co., 137 Neb. 128, 288 N.W. 532, 289 N.W. 767. It is material, however, on the question of plaintiff's credibility and that of his wife. They both testified that the plaintiff had fully recovered from whatever difficulty the experienced in 1956, and that he had no back difficulty whatever until the accident of September 6, 1959...