Claim of Van De Water v. Emmadine Farms, Inc.

Appellate Division of the Supreme Court of New York

Claim of Van De Water v. Emmadine Farms, Inc.

18 A.D.2d 1119, 239 N.Y.S.2d 182, 1963 N.Y. App. Div. LEXIS 4022

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 1963

StatusPublished

This text of 18 A.D.2d 1119 (Claim of Van De Water v. Emmadine Farms, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Van De Water v. Emmadine Farms, Inc., 18 A.D.2d 1119, 239 N.Y.S.2d 182, 1963 N.Y. App. Div. LEXIS 4022 (N.Y. Ct. App. 1963).

Pincite

Opinion

The employer and carrier appeal from a decision of the Workmen’s Compensation Board which determined that the death of the employee did not result solely from intoxication. Decedent was a retail milk delivery man. On June 29, 1958, he was driving a delivery truck which he operated standing up immediately adjacent to an open sliding door which extended from the floor of the truck to the top. While proceeding on a straight level highway he fell from the open door to the pavement, striking his head and causing his death from a fractured skull. The truck immediately thereafter veered sharply to the right, went up a bank and overturned. Two witnesses who were following decedent’s truck observed that he swayed back and forth from the center line to the edge of the highway prior to the accident, but at all times the truck remained in its own lane. On autopsy it appeared that deceased had 0.21% by weight of alcohol in his blood, which is medically considered sufficient to cause intoxication. Undoubtedly this record would have sustained a finding by the board that death was due solely to intoxication, but we do not think that on this record the board was compelled to so find. The board could find, as it did, that the proximity of the open door, the fact that he drove standing up, and other factors, were contributing causes to his death. (Matter of Reichel v. Stokol Sales of N. Y., 282 App. Div. 903, affd. 308 N. Y. 671). Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.

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The employer and carrier appeal from a decision of the Workmen’s Compensation Board which determined that the death of the employee did not result solely from intoxication. Decedent was a retail milk delivery man. On June 29, 1958, he was driving a delivery truck which he operated standing up immediately adjacent to an open sliding door which extended from the floor of the truck to the top. While proceeding on a straight level highway he fell from the open door to the pavement, striking his head and causing his death from a fractured skull. The truck immediately thereafter veered sharply to the right, went up a bank and overturned. Two witnesses who were following decedent’s truck observed that he swayed back and forth from the center line to the edge of the highway prior to the accident, but at all times the truck remained in its own lane. On autopsy it appeared that deceased had 0.21% by weight of alcohol in his blood, which is medically considered sufficient to cause intoxication. Undoubtedly this record would have sustained a finding by the board that death was due solely to intoxication, but we do not think that on this record the board was compelled to so find. The board could find, as it did, that the proximity of the open door, the fact that he drove standing up, and other factors, were contributing causes to his death. (Matter of Reichel v. Stokol Sales of N. Y., 282 App. Div. 903, affd. 308 N. Y. 671). Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.

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Bluebook (online)

18 A.D.2d 1119, 239 N.Y.S.2d 182, 1963 N.Y. App. Div. LEXIS 4022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-van-de-water-v-emmadine-farms-inc-nyappdiv-1963.

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