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Nardone v. Public Service Electric and Gas Co.

Decided: October 4, 1934.


On certiorari. Prosecutrix seeks to review a judgment of the workmen's compensation bureau, in a death case, in favor of the respondent. Affirmed.

For the prosecutrix, Sandmeyer & Meissner.

For the respondent, Henry J. Sorenson (Henry H. Fryling and William H. Speer, of counsel).

Before Justices Trenchard, Heher and Perskie.


The opinion of the court was delivered by

PERSKIE, J. Arcangelo Nardone, twenty-nine years of age, husband of the prosecutrix, and father of two minor children, two and five years of age, was employed as a mechanical helper by the respondent, at its Coal street garage, Newark, New Jersey. He also took care of the furnace in the premises. In the performance of his latter duties he was required to go outside the enclosed premises, into the open yard, to obtain coal. A brick stack, approximately two hundred and fifty feet high, is situated about thirty feet from the basement exit of the garage. A hand shovel protruded from a pile of coal at the base of the stack. In close proximity to the coal pile there was an empty wheelbarrow. These facts tend to indicate that Nardone had undoubtedly started to get some coal. His working hours, at the time, were from eleven P.M. through the night.

On November 25th, 1930, about six-forty-five A.M., Nardone

was found unconscious in the basement of the garage, underneath an ash hopper. A pool of blood was at the spot where he was found and another pool of blood was a few feet away from the wheelbarrow. Between the two pools there was also what was described as a "trail of blood." Nardone's hat, with a hole in the top, was found a few feet from the coal pile. He sustained a fractured skull in the occipital region and died a few hours after he was found. Evidence was "that there was some soot around the hole in his head." There was also some evidence that footmarks indicated "like somebody had skidded around there; a couple of them. There weren't many." Under the proofs, however, we attach little, if any, importance to the subject of the footmarks. For the few words spoken by the deceased, by way of intermittent answers to questions put by detectives of the police department, disclosed that there was no fight; that deceased had not been hit by anyone; that he did not know how he sustained the injuries.

Prosecutrix, in her petition, answering inquiry 17, "what was the nature of the accident and how did it happen?" stated "deceased was employed in wheeling coal in a wheel-barrow and while engaged in this occupation was struck on the head by a heavy object falling from the property of defendant, &c." Respondent denied having any knowledge as to how the accident happened.

The case was tried before the workmen's compensation bureau (Stahl, deputy commissioner) on the theory that a brick had fallen out of the stack, heretofore described, hitting the deceased and resulting in his death.

In support of that theory claimant produced police officers who gave such testimony as, "there was an opening at the very top of the chimney or stack, not the natural one, through which opening daylight could be seen," "I mean brick around the chimney," "there was a brick missing from the top;" that "there was a space at the top of the chimney," "a small gap in the peak of it."

Respondent produced sixteen witnesses. The personnel of these witnesses consisted of builders, engineers and surveyors, experts and lay persons. The construction of the stack, generally,

and the laying and setting of all bricks therein, particularly, was described in detail and tended to indicate the lack of any likelihood that any one brick thereof could have fallen out. The stack was climbed and minutely examined. Other witnesses examined it by the use of a transit, binoculars and telescopes of special construction, and some of which magnified the object inspected from thirty to seventy fold. All of the witnesses for respondent testified that not a brick was missing in the chimney or stack. One of the witnesses for the prosecutrix (a police officer) who testified that a brick was missing, was asked by a witness for respondent to accompany him to the stack and point out the missing brick. They went to the stack. They used magnifying glasses but no missing brick was pointed out; although the witness did leave the inference that the stack looked differently than it did at the time he first examined it.

The deputy commissioner was of the opinion that respondent's proof completely rebutted petitioner's proof that a brick of the stack was missing or that there had been any repairs made to the stack since November 25th, 1930. We also think so. We are, of course, not swayed by the mere number of respondent's witnesses. We are, however, convinced by the character of the witnesses and the quality, and probative value, of their testimony. This testimony is not only cumulative; it is overwhelming. It is convincing. It compels the conclusion that the theory (of a falling brick) upon which the petitioner sought to ...

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