Claim of Noble v. Mathieson Alkali Co.

196 A.D. 245, 186 N.Y.S. 752, 1921 N.Y. App. Div. LEXIS 5508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1921
• Status: Published

Opinion

Kiley, J.:

The claimant was a man fifty-three years old when the injury complained of occurred. He was at work for his employer, appellant, at its place of business at Niagara Falls, N. Y. He was a millwright’s helper, and on the 7th day of November, 1919, was at work in the boiler room jacking up a stack. No unusual effort was required or exerted in this work. Between four and five o’clock he felt a pain in the region of the groin and was sick to his stomach, went home and on November 10,. 1919,. was operated for a simple hernia. In jacking up this, stack a handle was used and worked up..and down; three men worked upon; it of whom ■claimant •was the tallest.- The Commission, in making the award appealed from, used this circumstance in its endeavor to create an unusual hazard. No doctor was called to testify; no evidence of anything unusual happening was given; no slip, fall nor blow was claimed; no evidence that the conditions prevailing at the time would be likely to or could produce the condition of which claimant complains. We have passed upon similar records adversely to respondent’s contention in Hager v. Griffin Mfg. Co. (193 App. Div. 820) and Gentelong v. American Hide & Leather Co. (194 id. 9). (See Matter of Alpert v. Powers, 223 N. Y. 97, cited in above cases.) The award of eight, weeks’ compensation is faulty, there being no evidence to sustain it. (Matoris v. Estey Piano Co., 189 App. Div. 297.)

The award should be reversed.

All concur, except John M. Kellogg, P. J., dissenting.

Award reversed and claim dismissed.