Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d. Gaulkin, J.A.D. (dissenting).
[61 NJSuper Page 563] By this appeal appellant seeks the reversal of a judgment entered in favor of petitioner in the
County Court affirming the judgment of the Workmen's Compensation Division.
We have analyzed the evidence in the case "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) and Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 448 (1958). The sole issue presented by this appeal is whether or not petitioner established by a preponderance of believable evidence that the lost vision of his right eye was causally related to his admitted employment. It is not denied that petitioner suffered a detachment of the retina of that eye and a resultant total loss of vision therein.
Preliminarily, and because of appellant's claim that it is a significant factor, we note and hereinafter refer to the chronology of events leading to the judgment based on the injury alleged to have been sustained on February 9, 1955. The petition was filed July 12, 1955. The initial date of the formal hearing was May 2, 1957. The second day of the hearing was December 19, 1957. The Deputy Director's decision was rendered April 29, 1958 and judgment thereon entered May 20, 1958.
Petitioner claims that the accident on which the judgment in his favor was based occurred as he was engaged in his first day's work for appellant. On that day, February 9, 1955, he had commenced work at 8 A.M. Although by profession a sculptor, petitioner's initial work for appellant was in cutting a mold from a block of marble weighing about 300 pounds. The cutting instrument was a chisel powered by a hammer approximately a foot in length and weighing about two pounds operated by compressed air. A foreman of appellant described that a cutter, using such an instrument, would with one hand grip the cutting tool set against the stone and hold the vibrating hammer in the other hand.
Petitioner, testifying that there was vibration from the use of the air hammer, said: "I get shaking, vibration in the arm." He stated that he had been using the hammer steadily during the forenoon; that at about 11:30 A.M. he had "moved" the large block of marble to obtain more light for his work. He states: "I went to the block to move it over to a little light, to have more light, and about one o'clock I started to see black spots in my eye." He described his movement of the marble slab, which was on top of a bench, as follows:
"Q. How did you move it when you moved it? A. Lift it up, move one place to the other.
Q. Well, did you lift it up entirely in your hands? No, to one side.
Q. To one side you moved it? A. Moved it.
Q. Was it easy for you to do? A. No, it was heavy.
Q. Well, all I ask you to do is, in your own words, for you it was heavy. Will you tell the Court in your own words just what you mean by that? A. Well, I had no light where I worked, because it was a mold, a heavy mold, I had no light, I tried to turn to get some light, because it is important to have light to cut down a piece of mold work.
Q. All right. Now, what I want you to do is describe --
The Deputy Director: Was this thing hanging or something?
The Witness: On top of a bench.
The Deputy Director: It was on a bench?
The Deputy Director: How did you pick it up, move that 300 pounds?
The Witness: Lifting it one side and turn around.
Q. Turned around to get light, that is what you are telling us? A. Yes, sir.
Q. What I want you to tell the Court, you say this was heavy, what do you mean by that, just how heavy was it for you to move, tell the Court how you were lifting it, and why you say it was heavy? A. I moved to get the light, it was a heavy piece. Move it to get light because I have no light where I was.
Q. What did you move it with? A. I lift it up with my hand. After a little while lifting it up I start to see black spots in my right eye.
Q. About how long after you moved it did you start to see black spots in front of your eyes?
Q. How long? A. Well, a little while, I don't know how long it was. I saw black spots after a little while I lifted the block. I had no watch with me, to look at a watch.
Q. What time do you go to lunch? A. Twelve o'clock.
Q. Did you see black spots before or after lunch? A. After I lift the block I see black spots.
Q. What I am trying to get at, you say it was a little while after? A. It was 11:30 I lifted the block.
Q. How long after that, do you know how long? A. A little while, ten minutes. I had no watch with me I recall soon as I finished lifting the block I see the black spots.
Q. When you told us before that you saw black spots at one o'clock, what did you mean by that? A. Maybe I see some big -- first see little black spots, then after a little while they get bigger.
Q. I see. When you first started to see black spots, was it before you went to lunch? A. When?
Q. You say that this was about 11:30 you lifted this? A. Yes, sir.
Q. And did you say a little while after that you first started to see black spots? A. Very little.
Q. Yes, very little. In the beginning, then, you told us earlier that you went to lunch at twelve o'clock. Did you start to see these black spots for the first time ...