Claim of Jeffreyes v. Charles H. Sager Co.

198 A.D. 446, 191 N.Y.S. 354, 1921 N.Y. App. Div. LEXIS 8118

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1921
• Status: Published

Opinions

H. T. Kellogg, J.:

The claimant was employed by a photographer in the development of photographic plates. It was necessary for her, more than 500 times each day, to dip plates, held in her left hand, into a poisonous chemical solution. Having performed this work continuously for more than a week her fingers became red and swollen. She then went to a physician who gave her treatment. Eventually the end of the little finger of her left hand became mummified, gangrene set in, and an amputation thereof becoming necessary, was performed. The pathological cause of her injuries was the contraction of the blood vessels of her finger through the gradual action of the chemical solution. In my opinion there was no accident involved for two reasons: First, the contact made by claimant between her hand and the solution was voluntary and intentional. In Matter of Woodruff v. Howes Construction Co. (228 N. Y. 276) the claimant developed a frog felon on the palm of his right hand as the result of the continuous pounding of his hand upon the head of a screwdriver. An award was reversed for reasons of which the following was one: “ This testimony was insufficient to show that the injury was caused by accident. An accidental event takes place without one’s foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of the known cause, and therefore not expected.” In our case the one event, namely, the coming into contact of the hand and the solution, was expected, and, therefore, not accidental. Secondly, the injuries resulted from no occurrence which is referrable to any particular moment of time which is definite. The word “ accident ” is derived from the Latin verb decidere, signifying “ fall upon, befall, happen, chance ” (Century Dictionary), and denotes an event which" occurs upon the instant rather than something which continues, progresses or develops. In Marshall v. East Holywell Coal Co., Ltd. (7 W. C. C. 19) it was held that a “ beat hand ” or “ beat knee,” a miner’s injury, caused by the gradual process of continual friction, was not an accident. Collins, M. B., said that “ the accident must be something which is capable of being assigned to a particular date.” Mathews, L. J., said: “ It seems to me that it would be as reasonable to call the occurrence an accident as to say that it was an accident when a man ceased to be able to work because he was worn out by long hard work.” In Steel v. Cammell, Laird & Co., Ltd. (7 W. C. C. 9) it was held that lead poisoning, being due to a gradual process, could not be accidental in its origin. One of the reasons assigned by the court for its decision was the fact that the statute (60 & 61 Viet. chap. 37, § 2) required a notice of an accident to be given within a stated period after it occurred, and that from this it was to be inferred that the accident contemplated must be one having a definite moment of origin. The same conclusion can be drawn from our statute requiring a notice of an accident to be given within thirty days thereafter. It seems to me, therefore, that as the injuries in this case arose from the application of a poisonous solution during the working hours of claimant for a period of more than seven days, and as the application was voluntarily made, she received no accidental injury for which an award could properly be granted.

The award should be reversed and the claim dismissed.

Cochrane and Van Kirk, JJ., concur; John M. Kellogg, P. J., dissents with an opinion in which Kiley, J., concurs.