Opinion
June 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award of the Workmen's Compensation Board. The deceased husband of the claimant was killed in an automobile accident. Autopsy revealed presence of 0.27% alcohol in the blood. The main question on appeal is whether the determination of the Workmen's Compensation Board that his death was not due "solely" to intoxication must be reversed as a matter of law. The vehicle driven by the decedent collided with the rear of a log truck moving in the same direction. The portion of the log truck struck by the vehicle driven by decedent is a left side "bunk", which is a beam about 10 feet by 10 feet which extends beyond the rear wheels of the truck. The vehicles were not in a square impact. Photographs of the employer's truck indicate that the point of impact on it was the right front side. The inference is therefore admissible that the collision occurred as the deceased was attempting to pass to the left of the lumber truck. The time of accident is shown to have been at dusk and it could be inferred that a sober driver in such light in attempting to pass might have misjudged the location of the "bunk" on the lumber truck. Accidents of this sort occur from time to time with sober drivers; and it is not possible to say with such certainty that the board must be reversed as a matter of law that the accident was due "solely" to intoxication. The presumption of law is that the accident and death were not solely due to intoxication. (Workmen's Compensation Law, § 21, subd. 4.) Although the presence of 0.27% alcohol indicates intoxication, this is not a full answer to the additional requirement that intoxication be shown to be the only cause of death. Moreover, there is testimony in this record that very shortly before the accident the decedent appeared and acted normally. The problem presented by death in a moving vehicle was considered in detail in Matter of Shannon v. American Can Co. ( 278 App. Div. 546) and this case is governed by the same principle. A second point on appeal is that there was a deviation from employment at the time of accident; but the proof is adequate on the point that decedent had gone to Highmount to examine snow equipment in the interest of the employer, which is in the ski resort business; and the scene of the accident was on the direct road from Highmount to the employer's place of business and decedent's home. Award unanimously affirmed, with costs to the Workmen's Compensation Board.