On appeal from the Supreme Court, whose opinion is reported in 122 N.J.L. 165.
For the appellant, Isadore & Nathan Rabinowitz.
For the respondent, John J. Breslin, Jr., and McCarter & English (Ward J. Herbert, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. The widow of the deceased employe appeals from the judgment of the Supreme Court affirming the judgment of the Pleas, which in turn reversed the judgment of the bureau in her favor.
The question we are called upon to decide is whether the Supreme Court, in adopting the factual and legal conclusions of the Pleas, invoked and applied the applicable rule of law when, as here, it held that the death of the employe -- appellant's husband -- conceded to be from heat prostration suffered while at his work, was not the result of an accident arising out of his employment.
The proofs in the bureau in support of the widow's claim that her deceased husband suffered a compensable accident, because his death arose out of his employment, disclose, substantially, the following:
Respondent, as its name indicates, is engaged in the sugar refining business. Part of its plant consists of a dock built over the Hudson river, at Edgewater, New Jersey. The size of the dock, variously estimated, may safely be said to be, at least, four hundred feet long, one hundred feet wide and sixty feet high. It is of "wood construction, wooden trusses, wooden roof and wooden rafters * * *." One side is covered with "corrugated metal" and the other side with "transite boards, a fireproof insulated material." The roof consists of "tar and paper covered with slag or pebbles." The
dock has many doors and windows. It, however, requires the use of many large electric lamps to supply light during the day time.
To this dock came vessels, as did one on July 10th, 1937, loaded with raw sugar in bags weighing between three hundred and three hundred and forty pounds. As these bags of sugar are transported from the vessel to the dock a certain quantity of the sugar drops out of the bags and accumulates both on the platform of the trucks used and on the floor of the dock.
The work of Salvatore Ciocca (appellant's husband) consisted chiefly of sweeping up the sugar accumulated, as aforesaid, so that it could be salvaged, as it was, by placing it in buckets provided for that purpose; he also spliced rope slings used in hoisting the bags, he shoveled sugar and did other work from time to time as the occasion demanded. His working hours were from eight o'clock in the morning until five o'clock in the afternoon. He was a healthy and steady man; he worked regularly for respondent for about fifteen years.
July 10th, 1937, was an abnormally hot day. There was a maximum temperature of ninety-five degrees Fahrenheit and a minimum of ninety-one degrees Fahrenheit and a mean temperature of eighty-eight degrees Fahrenheit. This was an increase of fifteen degrees above normal. Ciocca commenced his work as usual at eight o'clock in the morning. He swept the accumulations of the sugar from the trucks. These trucks were from one and one-half feet to four feet from the platform of the dock. Since he was only "a medium sized man" he had to lean over with his broom to reach the platform of the trucks. So he worked steadily with the exception of an hour for lunch, until four o'clock when he was taken sick; he appeared to be "tired." It is conceded that he was overcome by "heat ...