Price, Gaulkin and Conford. The opinion of the court was delivered by Price, S.j.a.d. Conford, J.A.D. (concurring).
This is a workmen's compensation case. By this appeal Hatco Chemical Company seeks to reverse a judgment of the County Court which affirmed a determination and judgment of the Department of Labor, Division of Workmen's Compensation, in favor of petitioner, Concepcion Olivera, widow of Israel Olivera, an employee of Hatco at its Fords plant. Appellant contends that petitioner failed to establish that the death of decedent on October 28, 1955 arose out of and in the course of his employment. Affirmatively, it asserts that his death "was circumstantially shown to have arisen as the natural and proximate result of intoxication."
Decedent was survived by a widow and four minor children. Appellant contends also that petitioner and her children were partial and not full dependents and that compensation
awards in their favor on the basis of a finding of full dependency constituted error. Appellant additionally urges that reversible error was committed by the Division in the exclusion of certain testimony to which reference is hereinafter made.
We analyze the evidence revealed by the record before us in order "to determine the facts and evaluate them," giving "due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses." Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958); Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 448 (1958).
Decedent was employed by appellant as a centrifuge operator at the time of the accident in question. He had been employed by Hatco for 18 months next preceding the date of the accident, and for the last six months of that period was engaged mainly in operating a large centrifuge, powered by electricity and operated by push buttons. The machine was housed in a shed at the Hatco plant. The shed was of a size sufficient only to accommodate the machine and the operator, who when working would stand on a platform about two feet in width located between the machine and the outer shed wall. The shed was located at the edge of a declivity and was open on two sides.
The dimensions of the centrifuge and the method of its operation were described by a safety inspector of the New Jersey State Department of Labor and Industry as follows:
"The overall horizontal top cover of the Centrifuge was five foot, two inches long; and there is a circular four inch lip making the house diameter four feet, ten inches; the basket, inside diameter, is three foot, ten inches with a five foot circular well surrounding the basket; the basket opening at the top is thirty-two inches; the center, a Bird-type Centrifuge, 600 rpm's; and it is powered with a fifteen horsepower class one, group D motor.
The motor is mounted in the vertical plane with a four inch shaft that drives the basket.
This particular Centrifuge is used to remove esters from a slurry cake made up of carbon. It is actually sludge coming from a filter-press * * *."
The shift foreman in charge of operations in the ester plant testified that the "centrifuge is used to extract the clay from Stoddard Solvent * * * which is used to extract the ester from the clays." He further testified that a "digger" operates on a crank to scrape "the clay out of the centrifuge"; that to operate it "you're supposed to shut the machine down so that it's revolving very slowly and gradually adjust your digging blade so it will cut the clay away from the sides of the centrifuge * * * it's raised and lowered by a wheel and you have to * * * adjust the blade outside the centrifuge itself."
At about 9:45 P.M. on October 26, 1955 one Martinez, a co-employee, found decedent lying unconscious on the platform in the shed alongside of the machine, which was then running. A broken piece of lumber was stuck in the slurry inside the centrifuge. Another piece of lumber was found on the ground at a distance variously estimated at 6 to 12 feet from the shed. The pieces, when matched, formed a two-by-eight plank approximately six feet in length. The inference was that the piece outside of the building had been flung there by the force of the operating machine. Other lumber of the type and kind formed by the matching pieces above described was located about 1,000 feet from the shed at the opposite side of appellant's plant where some concrete forms had been laid. There was no evidence as to how the piece of lumber had become lodged in the interior of the machine, nor as to how, when or under what circumstances it had been removed from the distant point aforesaid, assuming that it had been located there originally.
Olivera was pronounced dead on his arrival at the hospital at about 10:40 P.M. Autopsy performed by Dr. William Wilentz, the county physician, revealed that decedent had suffered a complete transverse fracture of the sternum at the level of the fifth rib, vascular engorgement, extensive brush abrasions over the entire sternum and extending to the mid-neck and under the chin area. Death was caused by hemorrhage, traumatic hemopericardium resulting from
a ruptured heart, associated with the fractured sternum. A blood examination revealed that there was a concentration of 0.1634 per cent by weight of alcohol in decedent's blood; or phrased differently "1.634 milligrams of alcohol per gram" of blood; and further described as "2-plus alcohol," which defines the range from 0.15 to 0.25 per cent.
Testimony describing the activities of decedent on the day of the accident revealed that at about 9 A.M. decedent accompanied Martinez from Perth Amboy to Newark on a personal errand of Martinez. They had lunch at the home of a cousin of Martinez on their return to Perth Amboy at about 1 P.M., rested for awhile, and then went to the Hatco plant where Olivera and Martinez were employed on the 3:30 P.M. to 12 midnight shift. Until about 7:30 P.M. or 8:00 P.M. the two worked changing kettles, cleaning presses and cleaning the floor. They ate together commencing about 7:30 P.M. or 8:00 P.M. When finished, they separated for their respective tasks. Decedent's assigned work was the operation of the centrifuge. Martinez testified that during the day when he was in the company of Olivera he did not see him consume any alcoholic beverages; that up to the time they separated at about 8 P.M. he noticed nothing unusual about him and saw no sign of intoxication. Martinez did not thereafter see Olivera until he discovered him dying at about 9:45 P.M. on the shed platform as aforesaid. Martinez testified that he had gone to the clay shed at that hour as he had a "break" in his own work and walked to the clay shed to see Olivera as "he was the only Spanish fellows [ sic ] that was working there then."
Decedent was seen by one Grover, a shift foreman employed at Hatco, at about 9 P.M. Olivera, in working clothes, came to the place in the plant where Grover was working, about 800 or 900 feet from the shed, and asked the latter for a cigarette which Grover gave him. He was in Grover's company for "a minute or two." They conversed briefly in a lighted area although handicapped by decedent's limited knowledge of the English language. Grover saw nothing
irregular about decedent's gait or his manner. Later that night Grover saw Martinez in front of the "clay shed" gesticulating wildly. He went to the shed and saw decedent lying on the floor of the shed facing the machine. He was then still breathing.
The centrifuge had worked properly when in charge of a Hatco employee who had operated it until 3 P.M. or 3:30 P.M. on the day of the accident, and, when tested the morning after the accident, was found to be operating satisfactorily.
Appellant, in seeking to establish its contention that decedent's death resulted from intoxication, contended that the proofs showed that in the operation of the machine there was no normal use to which a piece of lumber of the type in question could be reasonably devoted. Its theory was that the timber, inserted into the moving machine by decedent, was thereby broken and a piece of it struck decedent's chest; that decedent was intoxicated when he performed the reckless act.
Appellant produced Dr. John P. Brady, a chemist and toxicologist who had analyzed decedent's blood following the autopsy. He testified that a "person under the effect of .16 alcohol would not react to stimuli in the way that a person who had not ingested alcohol to that percentage would react. His sense of balance would be changed; his sense of responsibility would be changed; his reactions against the normal procedure would be radically different * * * and his functioning would not be one of a normal person."
Dr. Wilentz, on behalf of respondent, testified in response to a hypothetical question which included the known facts surrounding the accident, the results of the autopsy and blood analysis. He was asked "whether or not the intoxication of the decedent was in this particular case the sole proximate cause of the injury resulting in his death." He answered that decedent "had a ...