For the prosecutor, Henry S. Fryling (William H. Speer and Vincent F. Vosseller, of counsel).
For the respondent, David Roskein (John A. Laird, of counsel).
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. The question requiring decision in this workmen's compensation case is whether respondent's husband died as the result of an accident arising out of and in the course of his employment, as claimed and found for the respondent, or whether respondent's husband died as the result of a normal cause (acute heart failure) in nowise related to an accident, as claimed for prosecutor.
Anthony Ciecwirz, respondent's husband, concededly died of a heart condition, at the age of 58, on March 7th, 1938, while working as a laborer for prosecutor. He had been employed by prosecutor, in the stated capacity, since 1909. He never complained of poor health. On the contrary, he appeared to be enjoying good health. He was a good and regular worker and was a cheerful person.
On March 7th, 1938, a "clear," "very cold" and "freezing" day, Anthony Ciecwirz (hereafter referred to as Anthony), together with fellow workmen, was engaged in the work of digging a trench around prosecutor's main gas pipe line (hereafter referred to as pipe line) located at prosecutor's yard in Harrison, New Jersey, for the purpose of locating and repairing a leak which had developed in that pipe line. The digging was done with a pick and shovel. One workman, working at the bottom of the trench, would loosen the soil with his pick, and then shovel up the loosened soil to the top of the pipe line. Another workman would then remove the soil so deposited on the pipe line to the surface of the ground. Because of the leakage of the gas, the workmen would alternate their respective positions in the trench at intervals, variously estimated, ranging between three and thirty minutes.
Between 10:00 and 11:00 A.M., on March 7th 1938, the
Between 10:00 and 11:00 on March 7th, 1938, the digging of the trench had progressed to a point where it was about eight feet deep and about four feet wide, and the distance from the bottom of the trench to the top of the pipe line where the soil was first deposited was about four feet. At the time stated, Anthony was working at the bottom of the trench and Fred Hoffstadt was working on top of the pipe line. As both were so working, Hoffstadt heard Anthony
make some exclamation ("oh, boy"), and saw Anthony collapse and fall face downward on the bottom of the trench, the shovel underneath him.
Hoffstadt promptly got down to Anthony. He "shook him" but got no answer. He turned Anthony around and saw that his face was "strained" and that he was "breathing heavily." Hoffstadt with the help of another workman (Thomas McGeachen) then took Anthony, who remained unconscious, out of the trench. Hoffstadt called the foreman and both erroneously believing that Anthony had been overtaken by the gas fumes, the foreman instructed Hoffstadt to get the artificial respirator. As Hoffstadt was running to carry out instructions, he heard some one say "it's all right." He immediately returned to the place where Anthony, lying on a plank which had been placed on the ground, was being ...