McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.
This appeal is by the employer from a judgment of the Middlesex County Court reversing a dismissal of plaintiff's petition, and awarding compensation to the plaintiff.
Respondent testified that he was employed by appellant for five or six years as operator of steam and power shovels and cranes; that on November 5, 1946, he was on a job for appellant at Woodbridge, New Jersey; that he was operating a two and one-half yard Bucyrus Erie diesel motor power shovel; that the machine was not in good working order and that it required unusual effort, which he characterized as "superhuman effort;" that, from time to time, he was obliged to stop and rest because of terrific pains in the chest; that, before his working day was over, he was obliged to leave and went home about 3:30 P.M. and went to bed, and remained there for four days.
With respect to the incident in question, respondent testified as follows:
"Q. What was the condition of this motor when you first -- A. It was out of adjustment; it had recently been repaired and it was very much out of adjustment.
"Q. In what way was it out of adjustment? A. It was corroded and rust over the drums. The brakes were too tight, the frictions were too tight. They needed to be entirely readjusted, which is a necessity after any machine is overhauled.
"Q. What was the condition of the jaw clutch? A. Well, in this -- when it was on the level it was all right, but when I begin working down hill with it there was slack enough in there that these jaw clutches would shift from travel to swing -- * * * The jaw clutch developed change from travel to swing; when you want to travel you must change it over from the travel position to the swing position, there was slack enough in there that these jaw clutches changed, unless it was in the proper position. To do my work that day I
had to hold it out of position with my left hand and also swing it with my right.
"Q. You had to hold what? A. I had to hold it out of position with my left hand and also swing it with my right.
"Q. What kind of an effort was required to hold that up? A. That was almost superhuman effort to hold them up. * * *
"Q. What did you do about the condition of the machine as you found it? A. Well, after operating it some length of time I got almost exhausted from trying to keep it going, and I sent for the ...