Claim of Alwine v. Haines Car-Riers, Inc.

5 A.D.2d 892, 171 N.Y.S.2d 124, 1958 N.Y. App. Div. LEXIS 6700

Opinion

Appeal by an employer and its insurance carrier for death benefits to the widow of a deceased employee. The employer owned and operated apartment buildings in Buffalo, New York, and employed the decedent as a general maintenance man. On March 20, 1955 he fell down a flight of stairs on one of the employer’s premises, and suffered severe head injuries and a ruptured spleen. He died a few days later from an unsuccessful operation to correct the condition caused by the ruptured spleen. It is the contention of the appellants that the record contains no substantial evidence to sustain the finding that the accident arose out of and in the course of decedent’s employment. One of the principal witnesses in the claim was a tenant who testified that she asked decedent to repair a damaged window in her apartment, and decedent fell when he was carrying the window sash from the storeroom to the second floor. It seems to be undisputed that there was a window sash found leaning against the wall at the foot of the stairs after the accident. The tenant to whom we have referred made prior contradictory statements to a private detective and on the trial she explained the inconsistencies by stating that she was frightened. The record presents nothing but questions of fact as we view it. The board was not barred from accepting the testimony of the tenant which was favorable to the claim simply because she had made prior inconsistent statements. Award affirmed, with costs to the Workmen’s Compensation Board.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.