On appeal from Hudson County Court of Common Pleas.
McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D. Donges, J.A.D. (dissenting).
This appeal is from a judgment of the Hudson County Court affirming an award of compensation to the dependents of Charles E. Temple, age 35, who died on November 30, 1945.
Decedent entered the employ of Storch Trucking Company as a truck driver in July 1945 and continued as such until November 1st when he was out of employment for almost four weeks. He resumed his employment in the same capacity on November 28th. The following day he worked from 7 A.M. to 7 P.M. That evening he came home in poor condition and about midnight had "an awful pain" in his chest. After retiring, he had a recurrence in the early morning. He arose at 5:30 A.M. and reported for work at 7 A.M. at which time he said that he felt fine. A Mr. Harvie, the truck dispatcher for the defendant, assigned decedent to take a 7 1/2 ton trailer, loaded with some 15 tons of material, to Brooklyn. The trailer was parked in an open lot and during the previous night there had been a snowfall of 2.8 inches. In order to hitch the tractor to the trailer, it was necessary for the driver to maneuver the tractor under the trailer to couple them. Because of the freshly fallen snow and in order to get traction on the driving wheels of the tractor, it was necessary to shovel or scrape the snow from under the rear wheels to uncover an area about two feet long by a foot wide. The decedent, Harvie and a fellow-worker, Spencer, each did some shovelling. The decedent also procured ashes or cinders and spread them three or four times under the rear wheels of the tractor. After the tractor and trailer were hitched up, it was the task of someone to grind up the pony wheels which support the forward end of the trailer when not hitched to a tractor. This is done by some 20 or 25 revolutions of a hand crank and in cold weather it was, according to the witness Harvie, quite a job. Neither Harvie nor Spencer
rolled up the pony wheels from which it is a permissible inference that the decedent did so. On the morning in question, the hitching of the tractor to the trailer took about 20 minutes because of the condition of freshly fallen snow, as against five or 10 minutes under normal conditions. In maneuvering the tractor beneath the trailer, it was necessary for decedent to climb in and out of the tractor a number of times. After the two were hitched up, the decedent drove to the Holland Tunnel, Spencer riding with him as a passenger. This took approximately a half hour because of the snow conditions, as against 10 or 15 minutes under normal conditions. On the way to the tunnel, the decedent told Spencer of the pain that he had had the previous night. Other than that he made no complaint as to his physical condition. When some two-thirds of the way through the tunnel, the deceased, without warning, collapsed and died shortly thereafter.
The medical testimony is of importance and we quote therefrom at some length.
Dr. Bernstein called by petitioner was posed a lengthy hypothetical question which, inter alia, embraced the hypothesis that "while Mr. Temple was driving his tractor and trailer as described over Henderson Street, a period of about five to fifteen minutes from the time he left the lot on Montgomery Street, he complained to George Spencer, who was riding with him on the tractor, that he had a pain in the chest * * *". The deputy commissioner, over objection, permitted this hypothesis to remain although the witness George Spencer had clearly stated that the pain of which decedent told him was not a then existing pain. Spencer's testimony was "he told me he had it the previous night." The importance of this bit of evidence lies in the fact that it was a bridging symptom between the exertion which the decedent underwent in the parking lot and the fatal onset in the Holland Tunnel. That the doctor relied upon this symptom in arriving at the conclusion that there was "a definite causal relationship between the effort in which he engaged that morning in getting the tractor hooked up to the trailer and the myocardial infarction which ensued and his death" is demonstrated in his cross-examination.
"Q. What symptoms have you in the morning, Doctor, on which you base your diagnosis of myocardial infarction? A. The symptom was the pain in the chest of which the man complained while driving along. * * *
"Q. Doctor, with an impending catastrophe such as we have in this case you would expect, would you not, as you have so often testified, that upon exertion of the moment there would be immediate symptoms in the petitioner recognizable by others and by himself? A. What I have testified to again and again is that if the symptoms come on within fifteen or twenty minutes of the time of the exertion there is causal relationship, a reasonable probability that they were related.
"Q. All right, What are those symptoms? A. There may only be chest pain and death. There may be shortness of breath, there may be collapse; there may not be.
"Q. You expect symptoms, don't you, Doctor, upon exertion? A. Well -- you mean immediately. As I say --
"Q. Maybe within five or ten minutes. A. Or fifteen or twenty minutes, yes, and the symptoms may be chest pain ...