For the prosecutrix, George A. Henderson (Charles E. McCraith, Jr., of counsel).
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
HEHER, J. The question at issue is whether the death of prosecutrix' husband is reasonably attributable to an accident which arose out of and in the course of his employment with the defendant corporation, and therefore compensable under R.S. 1937, 34:15-7, et seq. The Deputy Commissioner found that the onus probandi had been sustained, but the Essex Court of Common Pleas ruled otherwise and dismissed the petition. We concur in the latter view.
Concededly, the deceased employee met with an accident on October 30th, 1936, in the pursuit of his employment as a stevedore. While pulling a handtruck up a gangplank
leading from a moored boat to defendant's freight house, his head struck a beam extending across the top of the building entrance, and he thereby suffered a laceration of the scalp in the occipital region. He was immediately taken to a hospital for treatment. The wound was cleansed and sutured, and he returned to his employment within an hour or two and resumed his usual duties. He worked the remainder of the day, and daily thereafter, ten hours per day, until the ensuing November 13th, when he was found prostrate on the deck of a boat whither his labors had called him. Death occurred shortly thereafter. There is no evidence of another industrial mishap on the day of his death. The contention is that the cause of death was a fracture of the base of the skull suffered in the accident adverted to. But it is in this respect that the proofs are deficient.
The widow and a neighbor testified that, from the time of the injury until death occurred, the deceased complained of headaches and manifested what a medico-chirurgical witness, Dr. Haskell, in response to a hypothetical question, characterized as objective symptoms of a "fracture in the anterior fossa of the base of the skull" (and, possibly, a fracture of the inner plate also) and "injury to the right cerebrum of the brain below the capsule, with a hemorrhage," warranting the conclusion that death came from an "epileptic seizure" ensuing from neglect of the fracture by the attending physician, who was in the service of the defendant employer. The manifestations thus testified to were, in brief, "dark streaks of blood" on the victim's handkerchief after the blowing of his nose, "dragging" of his left leg, twitching of the face, insomnia, loss of appetite, listlessness, apparent pain, and oral "foaming" during the fatal attack.
Yet these phenomena were not observed by the attending physician, Dr. Gluckman, who treated the deceased on alternate days until the sutures were removed on the fifth day, nor by any of his fellow employees. The patient was not heard by them to complain of headaches. This physician found no injury to the skull bone: and he "could definitely say there wasn't" an "internal hemorrhage; the man had no complaints referable to the brain, skull, or any of the underlying
tissues; * * * there was no evidence of any cerebral concussion." He looked for such. He inquired whether the patient had "had any headaches; his eyes and eye grounds were examined; he was given an equilibratory test, knee jerks were equal." There was "a complete recovery."
And Dr. Haskell assumed, in arriving at his opinion, that the deceased had "constantly bled from the nose," which he termed a "positive sign" of a skull fracture, and that he had "had a terrible wallop with a big beam -- he hit his head against the beam." It was shown that, after the accident, the deceased continued along the gangplank with the truck; and this the witness explained thus: "He could not drop because he was holding his hands against handle bars and that would prevent him ...