On appeal from the Supreme Court.
For the defendant-appellant, Lindabury, Depue & Faulks (Burtis S. Horner and Walter F. Waldau).
For the plaintiff-respondent, Edward A. Markley, Charles W. Broadhurst (Thomas J. Stanton).
The opinion of the court was delivered by
BODINE, J. The plaintiff recovered damages for the loss of an eye in a common law action. At the time of the accident, he was employed as a machinist. He was drilling a hole in some concrete when a particle entered his left eye. He was treated in first aid rooms established by the defendant and was attended by nurses and a physician also in its employ. The basis of the action was the improper manner in which the defendant had performed its duty to furnish proper medical and surgical treatment, and because of the lack of skill and training of its employes. The recovery could only
be had for injuries not arising out of and in the course of the employment. For the decision of this case it may be said that the proofs tend to show that the nurses and physicians employed by the defendant improperly and in a negligent manner removed the concrete imbedded in the eye, the nurses and not the physician probing in the eye, contrary to good medical practice. The physician instructed them so to do.
The plaintiff's employment was under the second section of the Workmen's Compensation act. For accidental injuries arising out of and in the course of his employment the statute furnished an exclusive remedy. Gregutis v. Waclark Wire Works, 86 N.J.L. 610.
An employe may recover under the act compensation for injuries caused to a thumb by reason of an unguarded or unpadded splint used in reducing the fracture of an arm broken by reason of an accident arising out of and in the course of the employment. Newcomb v. Albertson, 85 N.J.L. 435. The workman is also entitled to additional compensation for injuries suffered by the rebreaking of an arm due to a fall. Selak v. Murray Rubber Co., 108 Id. 548; 8 N.J. Mis. R. 838.
The following test of causal connection was approved by Mr. Justice Swayze in Newcomb v. Albertson, supra, and has since been regarded as controlling: "It seems to me enough of it appears that the employment is one of the contributing causes without which the accident which actually happened would have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed."
The theory of the present case and the one on which it was sent to the jury was that the casual connection between the injury to the eye and the resulting loss thereof was due to the malpractice of the physician and nurses employed by the defendant and that, therefore, there was an independent injury for which there could be recovery.
The English cases of Della Rocca v. Stanley Jones & Co. (1914), W.C. & Ins. Rep. 34, and Humber ...