Christensen v. Dysart , 42 N.M. 107 ( 1938 )

Appellant relies upon Brooker v. Industrial Accident Commission, 176 Cal. 275, 168 P. 126, L.R.A. 1918F, 878, which held that: "Death of an employee from a fall from a proper scaffold, because of an epileptic seizure, does not arise out of his employment, within the meaning of the Workmen's Compensation Act."

The epileptic seizure was the sole cause of the fall. The court said: "There was nothing in the nature of the work which the deceased was doing at the time that had any tendency to bring on a fit of epilepsy." The court went on to say: "A distinction is to be made between cases of this character, and those where the accident, though partly caused by the idiopathic condition of the employe, is due in part also to the overexertion of the employe in performing his work, or to the nature of the work or the appliances furnished to him with which to work, or to the lack of proper safeguards against the ordinary dangers of the place of work, the injury being sometimes greater because of his idiopathic condition. In those cases the injury is held to arise out of the employment. * * * Where the idiopathic condition and the employment are each contributing causes of the accident the employer is liable, but not where the idiopathic condition is the sole cause."

In the case at bar one of the findings of the court relied on by the plaintiff is: "That the nature of the work which the said Christensen was doing immediately prior to his death materially contributed to and caused him to slump down, and slip from the scaffolding where he was working, and to fall;" This was excepted to as not being sustained by the evidence.

No one testified as to seeing the deceased immediately before he slumped down on the platform. Defendant's witness, Patterson, testified that he and deceased were engaged in placing a board on the roof of the house and, "I heard him make a fuss, and he had done dropped his hammer and he was slipping down, like this (indicating)," and, further, "Q. When he made that noise, was he standing up? A. Yes, sir; when I looked around, he was slipping, and dropping his hammer. His hand was sliding down the roof. He sat down on the boards like that, (indicating) and turned over. I started to him, got about halfway to the scaffold, and by that time he was on the ground."

Part of the work of deceased was to pull up from the ground boards seven inches wide and sixteen feet long. The witness could not say whether he or the deceased pulled up the last board used before the fall. How much the witness' physical demonstration of the actions of the deceased at the time he slumped down on the platform may have aided the court in appraising the witness' verbal description I, of course, do not know. The circumstantial details in evidence produced conviction in the mind of the trial judge resulting in the finding heretofore quoted. I am not able to say there is no evidence to sustain the finding. If the fall of deceased and consequent injury resulted in part from a diseased condition and in part from the nature of the work he was doing, the accident is nevertheless compensable.

I concur in the result.