Summary
In Raina v. Standard Gas Light Co. of New York, 193 App. Div. 54 (183 N.Y. Supp. 264), the claimant was wheeling ashes in a cellar when a fellow-workman, by mistake, opened a gas-flue from which gas escaped and was ignited, burning the claimant.
Summary of this case from Dondeneau v. State Industrial Acc. ComOpinion
July 8, 1920.
Shearman Sterling [ H.E. Almberg of counsel], for the appellant.
Charles D. Newton, Attorney-General [ E.C. Aiken, Deputy Attorney-General, and Bernard L. Shientag of counsel], for the respondent, State Industrial Commission.
Napoleon B. Kleinpeter, for the claimant, respondent.
The appellant, employer, is a self-insurer in New York city. The employer's first report, after a careful examination by its foreman or superintendent, says that on the 6th day of December, 1918, at seven-twenty A.M., claimant "was wheeling ashes in cellar when Fireman F. Nettis opened, by mistake, ash clapper on No. 2 generator which was on a gas making run at the time. The escaping gas ignited causing severe burns on face, arms and body." It was explained in the evidence before the Commission that in the one intended to be opened for the purpose of removing slag and ashes the gas had been turned off. Claimant was sent to a hospital, his burns treated, and compensation awarded on account of the burns to his head, face and limbs, about which appellant finds no fault. Some time later claimant discovered that when he left his bed after a confinement of five or six weeks, he could not see out of his left eye and but little out of his right eye. The oculists, one for the respondent and one for the appellant, say that this condition existed for a long time and was due to causes, of which they know nothing, long predating the injury by he gas flame. Dr. Gulliver testified before the Commission: "I had him return to me on two different occasions, in the hope that he would acknowledge more vision or that I could prove he was an exaggerator or malingerer. I couldn't prove he was an exaggerator or malingerer, however, and whatever I say regarding that is my opinion, I have no definite proof." Notwithstanding the position Dr. Gulliver takes on this case, he says if the claimant came to him for treatment, not for evidence, he would assume his statements were true. He says the reason he does not accept them now is because he never has seen a case like it before. Not a very convincing reason. There is practical agreement between the doctors that the vision of the left eye is useless. An engineer and contractor testified that claimant worked for him eighteen years, on buildings, stagings, pipes, beams and timbers, and that there was nothing defective in his eye-sight that showed in his work in all of these dangerous places. He worked for the appellant a couple of years. Co-workers said his eye-sight was bad, but none could tell any instance where he manifested it by acts or words. All right before the fire, helpless everafter, is there any other cause? The Commission awarded him 128 weeks' compensation because of this injury, and appellant cites Matter of Carroll v. Knickerbocker Ice Co. (218 NY. 435); Matter of Collins v. Brooklyn Union Gas Co. ( 171 App. Div. 381); Potts v. Pardee ( 220 N.Y. 431); Frings v. Pierce-Arrow Motor Car Co. ( 182 App. Div. 445) and Matter of Grammici c. Zinn ( 219 N.Y. 322) as sustaining its contention. An examination of each and all of these cases shows they are easily distinguishable from the one at bar. I am inclined to think that the able prevailing opinion in Weber v. Haiss Mfg. Co. ( 191 App. Div. 12; affd. in the Court of Appeals without opinion, 229 N.Y. 525), points the way to the real solution of claimant's difficulty.
The award should be sustained.
Award unanimously affirmed.