For the prosecutor, McCarter, English & Egner (Verling C. Enteman and Nicholas Conover English).
For the defendant, George W. Wolin and Samuel J. Marantz.
Before Justice Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. Petitioner-defendant was employed by respondent-prosecutor as a watchman at its Newark Bay pumping station. On February 1st, 1940, he met with an accident while so employed, and filed a petition for compensation. The Compensation Bureau concluded that the petitioner had not sustained an accident arising out of his employment and dismissed the petition. On appeal to the Essex County Court of Common Pleas, Judge Hartshorne determined that the petitioner had suffered an accident arising out of and in the course of his employment and reversed the Bureau and entered judgment for petitioner. This writ of certiorari was allowed to review that judgment.
Two questions are raised by prosecutor. First, did petitioner sustain an accident arising out of his employment? Second, did the Essex County Court of Common Pleas err in its award to petitioner of temporary disability benefits and medical expenses?
Judge Hartshorne found the facts as follows:
On February 1st, 1940, petitioner was a watchman for respondent, and as such used a small shanty, furnished him by respondent, to keep warm in winter, where there were an arm chair, a pot stove, and one or two stools and pails of coal. Previously thereto, petitioner had had certain fainting spells, had suffered one or more paralytic strokes, affecting his entire right side, and had also suffered several epileptic fits, one on August 20th, 1938, another on October 11th, 1938, a third, after the fall, on March 25th, 1940, and possibly others. On the day in question he was seated in the arm chair in the shanty, when he claims he got up, or started to get up therefrom, to look outside, and was thereafter found
by his superior, Callery, lying on his right side with his face pressed against the stove, which was searing his entire forehead and right cheek, while his left hand was waving the air. In fact, due to the cramped quarters of this small shanty, but five by six feet over all, petitioner seems to have become wedged in his fall, with the upper part of his body between the stove and the wall, which were but a foot apart, his legs, alone movable, in addition to his left arm, being pressed against the door. Despite this constant searing of his face, there is nothing to show he made a single outcry. In fact, the only reason he was found at all by Callery was due to the barking of a dog outside the shanty, the dog being evidently startled by the noise of the man's fall inside.
"Petitioner himself offers the only direct testimony as to the cause of the fall. He says he had his left foot, his good one, hooked around the chair leg, and thus tripped when he started to get up. But not only was the chair found undisturbed by Callery, as it probably would not have been had he thus tripped, but petitioner's physical demonstration before the Bureau, as indicated in the record, and as found by the Commissioner, does not show a tripping, but that he was upright on both feet before he fell. Indeed, it would seem improbable that a man with one good leg, his left, and one bad one, his right, would have sought to rise on the bad one rather than on the good one. In addition, not only is there substantial medical evidence, opinion to be sure, to the effect that it was petitioner's physical condition, specifically an epileptic fit, which caused his fall, but while petitioner's witnesses are unfortunately somewhat vague as to his physical condition following the accident, the fact that he made no outcry whatever, while this hot stove was burning into his face, would certainly seem to indicate that he was in a fit, as the doctors say. For, while his speech was affected by his paralysis, he certainly would use his ...