Carroll v. What Cheer Stables Co.

96 A. 208, 38 R.I. 421, 1916 R.I. LEXIS 1

• Court: Supreme Court of Rhode Island
• Decided: January 5, 1916
• Status: Published

Opinions

Parkhtjrst, J.

This cause comes before this court on respondent’s appeal from a decree entered by Mr. Justice Tanner in the Superior Court on the 11th day of May, 1915, under the provisions of- the Workmen’s Compensation Act, so called, enacted by Public Laws of 1912, Chapter 831. In this decree it is recited that on the first day of December, 1914, the petitioner, William Carroll, was engaged at Providence, Rhode Island, in the employ of the respondent, What Cheer Stables Company, and had been engaged in this employment for the space of about five years.

That said Carroll was not engaged in domestic service or agriculture at the time, but was in the employ of the respondent as a hack driver and on the first day of December, 1914, while engaged in this employ, received a personal injury by accident arising out of and in the course of said employment.

That at said time the company had elected to become subject to the act and the employee had waived his right of action at common law.

That the injury was not occasioned by the willful intention of the employee to bring about the injury to himself and did not result from his intoxication while on duty.

That the cause of the injury was falling from the driver’s seat of a hack which the petitioner was driving in the regular course of his employment, the fall probably being due to dizziness or unconsciousness induced by a disease from which he was suffering, the evidence showing hernia, hardening of the arteries and Bright’s disease.

That the injuries were a broken right clavicle, broken ribs and shock to the nervous system, rendering the employee totally and permanently incapacitated for work and resulted in the permanent total incapacity of said Carroll.

That at the time of said injury the employee was receiving wages in the sum of thirteen ($13.00) dollars per week, working seven (7) days a week, with one day off in each four weeks.

That the amount of average weekly wages at the time of receiving the injury w^s ten and seventy-three one-hundredths ($10.73) dollars, and that the sum of twenty-eight ($28.00) dollars is a reasonable charge for medical and hospital services and medicines required by the employee during the first two weeks after the injury.

And that upon the above facts the What Cheer Stables Company should pay said Carroll the sum of twenty-eight ($28.00) dollars for medical services and medicines as aforesaid and the further sum of five and thirty-six one-hundredths ($5.36) dollars per week compensation, computed from the first day of December, 1914, until further order of the court, but in no event for a period in excess of five hundred (500) weeks. Costs were awarded in the sum of twelve ($12.00) dollars.

On the 13th day of May, 1915, the company filed with the clerk of the Superior Court a “claim of appeal from the final decree of the said Superior Court entered on the 11th day of May, A. D. 1915.”

Oh the 27th day of May, said company filed with the clerk aforesaid its reasons of appeal which are in substance, and without stating them in full, that the decision of the justice and the decree appealed are against the law and the evidence, in various details.

The real question raised by this appeal arises from the contention of the respondent that the evidence does not show a “personal injury sustained by accident by an employee arising out of and in the course of his employment,” under the language of the statute (Pub. Laws, Ch. 831, Art. I), § 1, which reads as follows:

“Section 1. In an action to recover damages for personal injury sustained by accident by an employee arising out of and in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense: (a) That the employee was negligent; (b) That the injury was caused by the negligence of a fellow employee; (c) That the employee has assumed the risk of the injury. ” .

The respondent’s brief proceeds to state its contention asfollows:

“This is the section of the act which defines those industrial accidents which the legislature had under consideration and against which it sought to protect the employee. Hence, to entitle the workman to compensation, the following elements must appear (1) that the workman suffered an injury; (2) that he suffered an injury by “accident;” (3) that the injury and the accident arose ‘out of’ the employment, and (4) that the injury and the accident arose in the course of the employment.

“By this language the legislature intended not simply that the ‘injury,’ but that both the ‘injury’ and the ‘accident ’ must arise out of and in the course of the employment. In the great majority of cases it would be impossible to separate the injury and the accident, so that one might arise out of the employment while the other would not. In the case before us, while we may admit for the sake of argument that the particular injury — the broken collar bone and ribs— were caused by the fall; that the fall arose out of and in the course of the employment because the petitioner at that moment happened to be sitting on the seat of his cab,— it by no means follows that the ‘accident’ arose ‘out of’ the employment. This, we believe, is where the authorities which will no doubt appear on the petitioner’s brief, have gone astray. That the ‘accident ’ occurred ‘in the course of ’ the employment is admitted.” .... “The respondent takes the position (1) that there is no evidence to support the finding of the presiding justice that either the injury or the accident arose out of and in the course of the employment, and (2) that such finding was against the law since the legislature never intended that act to apply to accidents caused solely by a workman’s previously diseased condition. ”

The only respect in which this decree is challenged by the appellant is as to the finding of fact that the petitioner “received a personal injury by accident arising out of . said employment;” and the appellant contends that the accident was solely due to the previously diseased condition of the petitioner and not at all to the employment.

It must be obvious that the petitioner, as the driver of a hack, seated at a height of four or five feet from the ground upon a moving vehicle is exposed to some risk of accident which would not be incident to an occupation carried on by a person seated upon the ground or upon a stationary platform. And this would be more so in case of an employee subject to attacks of vertigo or dizziness, or of temporary unconsciousness. Now although there is some evidence that the petitioner admitted that he had an attack of dizziness or unconsciousness just before he fell, and that caused him to fall, it is to be noted that there is no evidence that he had ever before had such an attack when he was driving; his only previous disability, so far as the evidence shows, had been a slight temporary disability due to displacement of his truss, when at work harnessing his horses, and which required him to lie down for a few minutes to readjust his truss; and he was also unable on account of his rupture to lift trunks on or off his hack. There is no evidence that he had at any time before the accident had any disability with regard to driving his horses when he was seated upon the carriage. But there is direct and positive evidence from a witness who saw him fall, who said, “I thought . . . that the horses ran against the curbstone and he fell off headfirst;” that “the horses was coming down the side of the sidewalk, not running, but not coming easy, on a kind of a gallop, and the first thing I see he was pitched out headfirst on the side, that way,” (illustrating); that "he was pitched up on the side, half on the sidewalk and half on the hill.” This evidence shows that the petitioner’s fall was more than the mere inert fall or collapse of an unconscious man (see Lewis v. Globe Indemnity Co., Mass. Workmen’s Comp. Cas., 1912-1913, p. 48; Sanderson v. Same, Ib. p. 224, 229); that it was a positive throwing or pitching of the driver from his seat by the movement of the hack turning or lurching into the gutter, toward or against the curbstone and might have happened to a driver in full possession of his senses; and although the justice of the Superior Court in his rescript does not allude to this evidence, it is to be presumed that, when he came to enter his final decree and decreed that petitioner "received a personal injury by accident arising out of ” . . . "said employment,” he made his finding upon all the evidence before him. We think that the evidence above quoted therefore was such as to warrant the finding of fact which is here challenged, and that under the decision in Jillson v. Ross, 38 R. I. 145 (July 2, 1915), we should not be justified in setting aside the decree upon this ground, — since the act provides that findings of fact, in the absence of fraud, shall be conclusive.

(1) The evidence does not show, as claimed by the appellant, that the petitioner’s fall was “caused solely by the workman’s previously diseased condition, ” nor does the justice of the Superior Court so decide; the justice says in his decree “the fall probably being due to dizziness or unconsciousness induced by a disease from which he was suffering, ” etc. But the decree also finds that the accident was one “arising out of . said employment;” there is at least as much evidence that the fall was due to an unexpected and accidental lurch of the hack into the gutter and towards or against the curbstone, as that it was due to dizziness or unconsciousness induced by disease. It seems to this court that the decision and the decree appealed from embody a conclusive finding of fact that dizziness or unconsciousness was not the sole cause of the fall and that there was evidence from which the justice could find as he did that th'e accident arose out of the employment.

Several cases have been cited on behalf of the petitioner where it appeared that the claimant had, prior to the accident, been suffering from disease and where it appeared that the diseased condition predisposed the claimant to the accident which occurred, and where it has nevertheless been held that the claimant was entitled to recover. In a very well considered case in the English Court of Appeal, decided in 1905, under the English Workmen’s Compensation Act, Wicks v. Dowell & Co., Ltd., 2 King’s Bench, Div. (1905), p. 225, it appears that a workman employed in unloading coal from a ship, who was required in the course of his duty to stand by the open hatchway through which the coal was being brought up from the hold, was seized with an epileptic fit while at work, and fell into the hold and was seriously injured; it was held that regard must be had to the proximate cause of the accident resulting in the injury, which was to be found in the necessary proximity of the workman to the hatchway; that the accident therefore arose “out of” as well as “in the course of” his employment, and that he was entitled to compensation under the act. It appeared that the employee was subject to epileptic fits; that it was his duty to stand on a wooden stage close to the edge of the hatchway; the stage being so constructed as to enable him to look down into the hold, and while standing on the stage he had to regulate the descent of the bucket into, and its ascent out of, the hold by means of a long pole, and also to give the necessary signals to the man who was working the crane; while thus engaged he was seized with an epileptic fit and fell through the hatchway into the hold and sustained very serious injuries. He had had an epileptic fit on three previous occasions. The county court judge held that the accident was due to the fit and did not arise out of the employment within the meaning of the act, and refused to award compensation. The applicant appealed. In the Court of Appeal it was contended, as here, that ‘ ‘ as the original cause of the applicant’s fall was the fit with which he was seized, the cause was one which the man himself carried about-with him, and that the damage which he sustained did not arise out of and in the course of his employment, but arose out of the idiopathic condition of the workman at the time. ” The court fully discusses and disposes of this contention upon principle and authority and determines that the thing which happened was an “accident” within the meaning of the act. The court, after discussing the rules and principles laid down in accident insurance cases, speaking through Collins, M. It., says, p. 229.

“But those authorities are in my judgment directly in point. A man is picked up at the bottom of the hold of a-ship suffering from injuries: what is the cause of his condition? The proximate cause obviously is that he has fallen from a height. But it is suggested that if the occurrence is analyzed, it will be seen that the accident was-caused by the idiopathic disease from which the man was-suffering, and that therefore the accident did not arise out of his employment. At that point the authorities come in, to the effect that, although the cause of the fall was a fit, the cause of the injuries was the fall itself, and they are direct authorities that the injury in the present case was caused by an accident.

“Then did the accident arise out of the man’s employment ? When we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury, and its actual physical cause from the more remote cause, that is to say, from the fit, the difficulty arising from the words ‘out of the employment’ is removed. How does it come about in the present case that the accident arose out of the employment ? Because by the conditions of his employment the workman was bound to stand on the edge of what I may style a precipice, and if in that position he was seized with a fit he would almost necessarily fall over. If that is so, the accident was caused by his necessary proximity to the precipice, for the fall was brought abouf by the necessity for his standing in that position. Upon the authorities-1 think the case is clear: an accident does not cease to be such because its remote cause was the idiopathic condition of the injured man; we must dissociate that idiopathic condition from the other facts and remember that he was obliged to run the risk by the very nature of his employment, and that the dangerous fall was brought about by the conditions of that employment. I think, therefore, that the present case comes within the purview of the Workmen’s Compensation Act, and that there is nothing in either the decision or the dicta of the learned Lords in Fenton v. Thorley & Co. 1903 Ap. Cas. 443 (1) which in any way qualifies the view that I have endeavored to express. The appeal must be allowed.

"Mathew, L. J. I am of the same opinion. The case affords an illustration of the rule that one should look to the immediate, and not to the remote, cause. In this case the immediate cause of the injury was the fall: I see no reason why we should hold that there was not an accident within the meaning of this statute. The true mode of dealing with the case is shown by a reference to the insurance cases that were cited during the argument. In Fenton v. Thorley & Co. (2) Lord Macnaghten said: ‘ One other remark I should like to make. It does seem to me extraordinary that anybody should suppose that when the advantage of insurance against accident at their employers’ expense was being conferred on workmen, Parliament could have intended to exclude from the benefit of the act some injuries ordinarily described as 'accidents’ which beyond all others merit favourable consideration in the interest of workmen and employers alike. ’ If we apply that view to the particular case, and treat the claim as an action brought upon a policy of insurance against accidents arising out of the employment of the assured, there can be no question that such a policy would cover the case. In my opinion we ought not to go back along the train of circumstances and trace the accident to some remote source when it is plain that the man was in fact injured by falling from the place where he was standing, and where it was his duty to stand, in discharge of his duty to his employer.

"Cozens-Hardy, L. J. I agree, and have little to add. It seems plain to me on the authorities that what happened here was an ' accident. ’ It is also plain, and indeed is not contested, that the accident happened in the course of the employment; the only difficulty is whether it arose 'out of’ the employment; on the whole I am of opinion that it did. If I could adopt the view that has been pressed upon us, that the employer is not liable for the remote consequences of a disability which the workman brings with him to his work, I should come to a different conclusion; but I think the truer view is that a man always brings some disability with him; it may be a disability arising from age; it may be of some other nature. A workman who is put in a dangerous position in order to do his work is more liable to an accident by reason of the -disability which he brings with him than he would otherwise be. Again, an old man is inherently more likely to meet with an accident than a young one, but an employer could not excuse himself on the ground of the man’s age. The same consideration applies to a tendency to illness or to a fit; and if a-man with such a tendency is told to go to work in a dangerous position and there meets with an accident, the accident none the less arises out of his employment because its remote cause is to be found in his own physical condition.

“Appeal allowed.”

The case of Wicks v. Dowell & Co., supra, was followed in the case of Driscoll v. Cushman’s Express Co., Mass. W. C. C. (July 1, 1912-June 30, 1913, pp. 125, 130), where the driver of an express wagon, employed by the defendant, while driving his wagon, suffered a fainting fit, or an "epileptiform attack,” falling from his wagon and fracturing his skull, dying from the effect of the fracture. It was held by the Industrial Accident Board, in review, and in confirmation of the decision of the Committee of Arbitration, that the employee was exposed to a substantial and increased risk owing to his occupation, that the injury arose out of and in the course of his employment, and that the dependent mother was entitled to compensation.

Wicks v. Dowell, supra, was cited by the court with apparent approval in Fennah v. Midland, Etc., Ry. 45 Ir. L. T. 192, 4 B. W. C. C. 440, 442, a case decided in the Court of Appeal, Ireland, 1911; and has been frequently cited in argument both in the English Court of Appeal and in the House of Lords. No case has been cited to us in which that case has been criticised, modified, doubted or overruled.

A number of cases have been cited to us involving the same general principle that where the previous diseased condition or temporary illness of the employee is a contributing or antecedent cause of the accident, nevertheless the employee may recover. See S. S. Swansea Vale v. Rice, 4 B. W. C. C. 298, a case of temporary illness, contributing to the accident of falling overboard from a vessel. Fennah v. Midland, &c. Ry. 4 B. W. C. C. 440, where an engine driver, at work on his engine while stopped at a station, tightening up a nut, fell to the permanent way and died from the effects of the fall; and where it appeared that he had previously had fainting fits; it was held that recovery could be had; that it was an accident arising out of his employment; Ismay v. Williamson, 1 B. W. C. C. 232 (House of Lords), where the accident was a heat-stroke from a furnace which happened to a hand employed in the engine-room, and who was shown to have been in poor physical condition, not fit to stand the heat; Clover Clayton & Co. v. Hughes, 3 B. W. C. C. 275 (House of Lords), a case of death of a workman who had a very serious aneurism of the aorta, which ruptured while he was engaged in his ordinary occupation; disease of long standing; M’Innes v. Dunsmuir & Jackson, 1 B. W. C. C. 226 (Court of Session, Scotland), where a workman having hardening of the arteries, by over exertion brought on cerebral hemorrhage, which was more likely to occur in his case on account of the hardening of the arteries; Maskery v. Lancashire Shipping Co. (1914), Stone’s W. C. & Ins. Cas. 290 (Court of Appeal, England), case of death from heat-stroke suffered by a laborer in the engine room of a steamer in the Red Sea, deceased being physically unfit for the work which involved exposure to extreme heat; citing Ismay v. Williamson, supra. See, also, Morgan v. Zenaida, 2 B. W. C. C. 19, and Aitken v. Finlayson, &c. (1914), Stone’s W. C. & Ins. Cas. 398.

We are’ of the opinion that the decree appealed from in this case is fully supported by the evidence; and.under the principles of law so clearly set forth in the above cited cases, with which we find no reason to dissent, we find that what happened to the petitioner was an “accident” under the terms of the act, and that the accident “arose out of . . . the employment.”

The appellant cites a few cases which do not seem to this court to have any weight in this connection, since the court in each case found that injury or death of the employee did not “arise out of the employment,” but arose from natural causes to which anyone not so employed would have been equally subject,— Sheldon v. Needham (1914), Stone’s W. C. & Ins. Cas. 274; Rodger v. Paisley School Board, (1912), Gordon’s W. C. Cas. 157; Robson v. Blakey (1912), Gordon’s W. C. Cas. 86; Butler v. Burton-on-Trent Union, Ibid, 222; Thackway v. Connelly & Sons, 3 B. W. C. C. 37, and Nash v. “Rangatira” (owners) (1914), Stone’s W. C. & Ins. Cas. 490; in the latter case the accident and death were found to have arisen out of intoxication and not out of the employment. We have carefully examined all of these latter cases and find nothing therein to disturb our conclusions.

Our decision is that the decree appealed from be affirmed; that the appeal be dismissed and the cause remanded to the Superior Court for further proceedings.