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Bacon v. Atlantic City Transportation Co.

Decided: February 16, 1962.

CHARLES BACON, PETITIONER-APPELLANT,
v.
ATLANTIC CITY TRANSPORTATION COMPANY, RESPONDENT-RESPONDENT



Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Since the argument on appeal in this workmen's compensation heart case, Dwyer v. Ford Motor Company , 36 N.J. 487 (1962) has been decided. Our study of the present record, and applying the principle enunciated in Dwyer that "compensability arises whenever the required exertion is too great for the man undertaking the work, whatever the degree of exertion or condition of his heart," impels this court to reverse the judgment of the Atlantic County Court which affirmed the Division of Workmen's Compensation.

The statement of the proffered facts, depositional and testimonial, detailed at length in the opinion of the judge of compensation, is not assailed; in resume:

I.

AS TO THE ALLEGED "CLOSE ACCIDENT."

Petitioner Charles Bacon, 49 years of age, was a bus driver for the respondent Atlantic City Transportation Company, operator of a public utility transportation line on Absecon Island and elsewhere. He had been an employee of that company for approximately 15 years, and for some time operated a passenger bus in the Atlantic City area.

On the morning of June 16, 1958 (a Monday) he commenced duty at 6:30 A.M., completing five local runs by 1:45 P.M. He rested before starting, at 2:55 P.M., on the last trip of the day, characterized as the "school time trip," which was along Atlantic Avenue (the main artery of travel) from the depot at the Inlet to the Franklin Avenue station at "7800 Margate." Upon reaching Tennessee and Atlantic Avenues (17 blocks from the Inlet), the bus stopped in front of City Hall; he "loaded" the passengers into the bus and was just pulling away from the curb line when a car approaching from the rear made a sudden right-hand turn directly in front of him. He (Bacon) quickly applied his brakes and swerved the steering wheel "real hard to the right in order to avoid the car hitting me, or me hitting the car"; there was no collision but "it was a near accident"; he then had to pull the steering wheel to the left with a great effort to get back in the bus lane. Petitioner claimed that at this particular moment he "broke out in a terrific sweat," experiencing excruciating pain across his chest and back, with burning pains down both arms, and that he was nauseated "in his stomach"; he pulled to the side of Tennessee Avenue in order to get out of traffic, rested for a few seconds, and then proceeded to go on with his route.

At the Franklin Avenue station he became sick. He "felt terrible" and was "in great pain" but, notwithstanding, he continued to make the return trip -- carrying out his usual duties, discharging and picking up passengers, maneuvering through traffic -- and finished the run without mishap. At Michigan Avenue Lawrence Beritelli, a neighbor, boarded the bus as a passenger and observed that petitioner "looked sick to me."

Upon arrival at the bus terminal at the Inlet shortly after 4 P.M., he again experienced a stomach upset and rested for a while in the trainmen's room before walking home, about two blocks, unassisted. He made no official report of the alleged "near accident," although he gave

testimony concerning a conversation with two fellow employees (then bus drivers), Charles Helder and Russell Hutchinson, to whom he complained that he was very sick and to whom he explained that he had had a "near accident" on Tennessee Avenue near City Hall. They offered to drive him home, which offer he refused.

Petitioner's wife returned home from work about 5 P.M. and found him in bed. She testified that he appeared to be in great pain; that she called Harry Coombs, a dispatcher for the respondent company, and reported to him that her husband got sick on the bus while at work and that she was about to call the doctor, which she did. The following day petitioner was taken to the Atlantic City Hospital. Bacon claims that while waiting for the ambulance, he telephoned Raymond Stark, superintendent of the transportation company, and informed him about the close accident of the preceding day. Stark admitted a conversation, but averred Bacon said he was going "to the hospital on account of his heart condition" and that he made no mention of a "close accident." No reference to a ...


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