Opinion
May 5, 1937.
Appeal from State Industrial Board.
Present — Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ.
The appellants contend that the decedent's intoxication was the sole cause of his death. The weight of medical testimony adduced at the hearing indicates that the injuries which resulted in the death of the said Harry Bol did not result solely from his intoxication while on duty. This was an unwitnessed accident. The deceased was engaged in fumigating a house and was overcome by hydrocyanic gas which was being used in the operation and the inhaling of which caused his death. Dr. Gettler, a toxicologist, testified that the finding of three and eight-tenths per cent alcohol in the brain of the decedent did not enable him to characterize the behavior of the decedent before his death. He admitted that individuals do not lose the ability to "navigate" until a percentage amounts to four plus. The decedent was operating with a gas mask and was found unconscious. Other persons who went into the house became immediately unconscious and overcome by this gas. The evidence sustains the finding of the State Industrial Board. Award unanimously affirmed, with costs to the State Industrial Board.