For the petitioner-respondent, Bartholomew A. Sheehan (Samuel P. Orlando, of counsel).
For the respondent-prosector, Rocco Palese.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
[119 NJL Page 542] BROGAN, CHIEF JUSTICE. This is a workman's compensation case. The referee dismissed the petition holding, in effect, that an accident arising out of and in the course of the employment had not been proved. On appeal, the Court of Common Pleas of Camden county reversed, holding that the petitioner had "suffered an accident arising out of and
in the course of his employment," and awarded compensation for the loss of his left eye. This court allowed certiorari.
The question before us is entirely one of fact. The petitioner was employed by the respondent as a ship fitter. On December 28th, 1934, when the petitioner claimed he suffered the accident in question, he was working on a vessel known as "contract No. 414." His duties brought him to the inside as well as the outside of the ship. The petitioner testified that throughout the day, at different intervals, he worked in what is known as the "peak" of the vessel which he said was about twenty-five feet long and twenty feet wide by fifteen feet high, and while there at those intervals (from one-half an hour to as long as an hour) was exposed to the bright glare of arc lights made by welding machines. The petitioner didn't use goggles or eye protectors, nor was he required so to do. He was not engaged to operate these welding devices but the work which he was performing took him into their vicinity.
On the day in question, when the petitioner had reported for work, he didn't feel well. He had what he described as a "grippy" feeling, but, none the less, he worked all day and felt no eye discomfort or irritation of the eyes during the day until he was on his way home in the evening, when he noticed "they just felt like someone would take a handful of sand and throw it in your eyes and cause your eyes to water all the time." He had suffered similar irritations previously when he worked with or close to the welders.
On reaching home that night, his wife sent for the family doctor to treat the petitioner for grippe and meanwhile prepared a home-made remedy of potato poultice to ease the eye irritation. A second doctor was called a few days later to attend the petitioner only because he was not responding to the treatment prescribed by the first doctor for grippe. The second physician, Dr. Jameson, noticing the home-made remedy petitioner had applied to his eyes, suggested other treatment. This physician was not an eye doctor and frankly says so in his testimony. When the eyes didn't improve under the use of argyrol and boric acid, Dr. Jameson suggested
calling in an eye specialist. Dr. Shemeley, an eye specialist, was called on January 4th, 1935, and prescribed treatment. Petitioner saw this same doctor again on January 7th, at which time he was told to go to the Wills Eye Hospital for observation and further treatment. He went to the hospital forthwith and was there for four weeks under the regular treatment of Dr. O'Brien, also an eye specialist. Dr. O'Brien, after several weeks of observation and treatment, removed the left eye. Prior to the time the petitioner suffered the eye irritation, his eyes were normal and he didn't require glasses except to read or to draw on a blue print, and the glasses he used on these occasions were regular reading glasses. This was his testimony.
Now the petitioner claims that the eye infection and loss of the eye was due to his exposure, in the discharge of the duties of his employment, to these electric "flashes" which were caused by the welding arcs. Dr. O'Brien supported the petitioner's claim for compensation, and testified that the petitioner had an abscess of the eye, technically called panophthalmitis, which he described as an inflammation of all the structure of the eye from "within out." Dr. O'Brien further testified that he had received from the patient a history of the occurrence of the "flash" at the time of petitioner's admission to the hospital and that he treated him daily until he operated on him, and removed the eye, and also afterwards up to January 30th, when he was discharged. His opinion was that the "flashes," so called, irritated the eyes and caused the petitioner to rub them by which action he started up virulent organisms or sources of infection (which the witness says is present in almost every eye) to such an extent that these organisms broke through the front of the eye and resulted in an infection of the entire organ. He testified that the infection did not come from within, i.e., from the inside of the ...