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Fox v. City of Plainfield

December 13, 1950

MAE FOX, PLAINTIFF-RESPONDENT,
v.
CITY OF PLAINFIELD, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, Jr., J.A.D.

Brennan

Sherley Fox, aged 47, a Plainfield fireman of 24 years service, died April 3, 1949, a few hours after suffering a cerebral hemorrhage while fighting a residential garage fire.

The Division of Workmen's Compensation awarded compensation and the Union County Court affirmed. The municipality appeals from the consequent County Court judgment.

The sole question is whether petitioner sustained the burden of proof to show the probability that Fox's death was the result of an accident which arose out of and in the course of his employment. Fox had suffered from high blood pressure, "hypertensive cardiovascular disease," for a considerable time.

Fox drove his fire company's apparatus at about 40 miles per hour to this fire in response to an alarm received at the firehouse. Upon arrival at the scene he maneuvered the engine into position near a fire hydrant, where the hose was attached and from which point he moved the engine forward toward the driveway. Fox and another fireman then had "to pull off a tier of hose, drag it, put a nozzle on and bring it in" to a point 12 to 20 feet from the garage to play water on the fire. The effort needed to get the hose to the fire was, as testified by the fireman who helped Fox, "Well, you got to pull it in, you can't walk to a fire that's burning at the time. You have to hustle it in there;" the operation "is fast."

Leisurely service is not characteristic of the fireman once the alarm is given. Weisenbach v. New Milford , 134 N.J.L. 506 (Sup. Ct. 1946). Haste is essential in meeting the emergency. Fire Commissioners, etc., of Moorestown v. Morris , 12 N.J. Misc. 153 (Sup. Ct. 1934). Fire service, moreover, has its hazards to life and limb of the fireman. Ordinary human experience justifies the conclusion that despite long service a fireman does not fight any fire free of emotional, physical and nervous stress and strain which are the natural incidents of haste and danger in emergent circumstances.

The fire was a "hot" one. One witness standing almost 45 feet away testified he had to move back because of the intensity of the heat. When Fox's company arrived the fire had made substantial headway. Gasoline and oil in an automobile in the garage created imminent danger of explosion and spread of the fire.

Fox was "very active at that fire. He took charge of the line and waited a few seconds, then the water came, it kinked it (the hose) quite a bit, and the other fellows came by with rubber coats and helped him on the job."

Neither Fox nor his fireman partner had taken time to put on protective clothing but promptly when Fox put the engine into position they had pulled off the hose, attached the nozzle and started their effort to extinguish the fire. After some minutes a superior officer relieved Fox and ordered him back to the engine to don protective clothing. Fox walked a distance of 40 feet to the engine, and "He was taking his boots or shoes off, he had one shoe on and one shoe off, as he was taking it off he fell backwards." It was at that instant he suffered the cerebral hemorrhage.

Dr. Olcott testified for petitioner. His opinion was the cerebral hemorrhage was precipitated by a rupture of the lenticular branch of the Sylvian artery which "can be made to burst by any adventitious rise in blood pressure due to emotional factors or anything of that kind," that the rupture was causally connected with the "episode," meaning "driving the truck to the fire, assisting in drawing the hose, putting

the nozzle on, the exertion at the fire and emotional excitement that always goes with a fire, that added together, the customary episode of fire fighting with, perhaps, as you described, extra heat, a little more added excitement and ...


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