Atchison v. Colgate & Co.

Per Curiam.

This is a workmen’s compensation case. The meritorious question involved is a question of fact.

There was an award by the deputy compensation commissioner, in the workmen’s compensation bureau, of $3,362.56, for the death of William Joseph Atchison, which, on appeal, was affirmed by the Hudson Court of Common Pleas, and $350 allowed the attorney of the defendant in that court. The certiorari was allowed to review that judgment. The prosecutor files seven reasons for setting aside the award and the judgment based thereon.

The undisputed facts show that William Joseph Atchison had been in the employ of the prosecutor for some years as a *452 laborer; that on October 26th, 1922, at about six forty-five p. m., while wheeling a hand truck, helping to unload a freight car, down an incline gang plank, and on the return trip to the car with the empty truck he fell from the gang plank to the sidewalk, some four feet, and was picked np> dazed or semi-unconscious. N o one saw him fall. He died on March 2d, 1924. During his lifetime Colgate & Company paid compensation, amounting to $825.88, under a belief, as the company says, that the paresis from which Atchison died resulted from the fall, but, as they now assert, the fall was the result of the paresis, which was neither caused nor accelerated by any injury or strain sustained while in the employ of the company. The prosecutor, to sustain its position, relies upon the testimony of three doctqrs called as witnesses, Dr. Arthur P. Hashing, Dr. Henry A. Cotton, Dr. George W. King. ■ The defendant relies in answer upon the testimony of Dr. John A. Botti. Robert J. Blair, who was coming up- out of the cellar, and Alexander HaHyburton, who was in the car at the time, were called as witnesses. Ilallyburton heard the truck fall; he got down and picked Atchison up> when Blair immediately came; Blair took Atchison upstairs and changed his clothes. From tins testimony it is legitimate to conclude, as the deputy coraraissioner did conclude, that the accident to Atchison arose out of and in the course of his employment. If the prosecutor seeks to avoid liability for a cause fox which it is not responsible, the burden of proof is on the employer to show such cause. The evidence does not satisfy us of that fact. The question is, whether the fall preceded the seizures and caused an acceleration of a pre-existing disease, which resulted in a general decline to death or whether the disease caused the fall? The testimony is returned in the printed book with the writ and the findings of the deputy commissioner. It would serve no useful purpose to restate the testimony. We think there is sufficient evidence to justify the findings of the deputy commissioner.

The judgment of the Hudson Court of Common Pleas will therefore be affirmed.