
    Esmonde v. Lima Locomotive Works, Inc.
    
      (Decided June 26, 1935.)
    
      Mr. Elmer McClain, for plaintiff in error.
    
      Messrs. Wheeler, Bentley, Neville <& Cory, for defendant in error.
   Guernsey, J.

This is an error proceeding from the Court of Common Pleas of Allen county,’ Ohio. In that court J. W. Esmonde was plaintiff, and the present defendant in error, Lima Locomotive Works, Inc., was defendant. The parties, therefore, in the course of this opinion, will be referred to in the relation in which they appeared in the Common Pleas Court.

Plaintiff had filed his claim with the Industrial Commission of Ohio for compensation for an injury claimed to have been sustained in the employ of the Lima Locomotive Works, Inc., a self-insurer. After rehearing the Industrial Commission made a final order denying compensation, whereupon the claimant appealed to the Common Pleas Court. The case was heard in the Common Pleas Court upon a transcript of the evidence submitted to the commission.

The pertinent facts of the case as shown by the transcript are as follows: On December 23, 1931, plaintiff, who had been employed by the defendant Lima Locomotive Works, Inc., at its plant in Lima, Ohio, for a period of nine years, as a blacksmith’s helper, was in the course of his employment engaged with one Johnson, a blacksmith employed by the defendant, in making a locomotive arch bar weighing about three hundred and fifty pounds. The piece of steel from which the arch bar was being made was twelve and half feet long, one and three quarters inches thick, and four inches wide. The work was done by heating the bar and sledging it with a twelve pound sledge into four bends over a form embedded in the ground aiid projecting upward three and a half feet. On both sides of this form were two holes two and a half feet deep to receive the ends of the bar during the various operations on it. To take the bulges out of each bend the crooked bar was laid on a face plate flat on the ground and sledged with a twelve pound sledge.

In detail the work consisted of four distinct operations, one for each of the four bends made in the bar. The first two bends were made near the middle of the bar, so that when placed on the form after the second bend the two ends extended into holes on each side of the frame. Bends three and four, were near the ends, turning them back parallel with the original direction of the bar.

At the beginning of the work and before the first bend the straight bar was heated to a white heat and carried by Johnson and plaintiff to the form and bent down by hand and with a fork. Then, while Johnson held the flatter, plaintiff sledged the bar to the form by striking it three or four blows with the sledge. Johnson and plaintiff lifted the bar with the one bend in it from the form to the face plate, and plaintiff with seven or eight blows of the sledge as hard as he could strike straightened out the bulges at the angle of the bend.

As a second operation Johnson and plaintiff then carried the bar to the fire, where it was reheated and then carried back by the two men and placed on the form for the second bend, with one end extending down into a hole at the time. By hand and with the fork the other end was bent down into the other hole, and with four sledge blows plaintiff sledged it to the form. Both ends being down two and a half feet in the holes at the side of the form it was necessary for Johnson at one end and plaintiff at the other to stoop down to the level of their knees and lift the three hundred and fifty pound bar (shaped roughly like an inverted U) two and a half feet upward to clear the top of the ground, and then drop it on the face plate. This was a difficult, straining lift, and was the heaviest work required in the making of the bar. It was while plaintiff was so lifting that he felt a sharp pain in his left side. Plaintiff again sledged the bulges out of the hot bar by striking them seven or eight blows as before, and while doing so he felt uncomfortable. He then walked outside of the shop and urinated, passing bloody urine. He came back holding his side, but made no complaint because he did not know he had been injured.

In the third operation in the making of the bar, as soon as plaintiff returned he and Johnson again lifted the crooked bar to the fire with the assistance of a fellow-employee named Hoak, ^ho was called in to assist because of the bar’s awkward shape. It was reheated and returned to the form with Hoak’s assistance. The plaintiff again helped bend the bar and then struck it four blows with the sledge. He then helped Johnson lift it from the form to the face plate, where he again sledged it with seven or eight blows. This was the third bend.

In the fourth operation the bar was carried to the fire, heated and returned to the form, where it was bent into shape. Plaintiff again sledged it. Then it was lifted to the face plate and the plaintiff sledged it again.

At the time of the injury plaintiff was twenty-eight years of age, weighed one hundred and fifty-five pounds, and was strong and husky. During his employment covering a period of nine years as a blacksmith’s helper he had been laid off part of each year, making in all about seven years work. He had never left his work, and had never remained at home from his work except once, on account of quinzy, at which time he had his throat lanced, and he had never complained of bad health. He had never had any heart trouble or rheumatism, although he had doctored a little for gas on the stomach. Before the time of his injury he had never experienced the pain he felt on that day.

The next day after the injury the plaintiff began doctoring for Ids heart. Doctor Mumaugh examined his side on that date and said, “I am afraid you have done yourself.” On December 26th he consulted Doctor Ohenoweth, who was leaving for several weeks, and the doctor gave him digitalis, because a heart diagnosis indicated heart murmur and dilation. During the absence of Dr. Ohenoweth the plaintiff continued to consult Dr. Mumaugh. Upon Dr. Chenoweth’s return on January 15th following, he examined plaintiff again and for the first time plaintiff learned that he had heart trouble. Dr. Ohenoweth treated plaintiff from January 15th on, through February into March, for heart trouble. Dr. Chenoweth’s more deliberate examination and diagnosis, and his statement of plaintiff’s condition, based on his entire treatment of plaintiff from the first to the last, showed that plaintiff had a sense of impending danger; a tense expression oí face; paleness; a rapid heart; sweating brows; appre hension; heart murmur; heart dilatation; and a per manent impairment of the heart.

Dr. Ohenoweth testified that plaintiff is permanently incapacitated and cannot do any work or engage in sudden exercise. He further testified that “Over-exercise would be the cause of this present condition, and although an infected throat could have caused the heart murmur it could not have caused the dilation.” Dr. Tussing also examined plaintiff once, on October 24th following the injury, and found that plaintiff had a defective heart.

Plaintiff has not worked since the date of the injury on December 23rd, except three days of light work at the locomotive works, when he ran a steam hammer. Whenever he attempts to do muscular work the pains return and he complains of being ill. His weight now is 145 pounds.

A hypothetical question predicated upon the evidence offered by the plaintiff was submitted to Dr. Chenoweth and to Dr. Tussing. Dr. Chenoweth’s answer to the question as to what injury could have resulted from the exertions and conditions set forth in the hypothetical question was that “dilation of the heart or some heart lesion would be most apt to occur.” He further testified that lifting such a weight thirty inches from a stooping position could cause the dilation, and that such a serious injury to the heart as he found it from actual examination could occur without the patient being aware of it. He further testified that dilatation of the heart is a permanent injury.

Dr. Tussing in answering the hypothetical question testified that the work done by plaintiff could have resulted in a physical heart injury; that heavy exertion will often cause dilatation in a heart that is previously damaged, and that the dilation might remain as a permanent injury that would result in permanent impairment of the patient’s ability to continue such work as that from which .the injury resulted.'

The evidence further shows that the plaintiff had previously to the injury engaged in the making of locomotive arch bars of the type mentioned, as a blacksmith’s helper, but that at all previous times another employee of the company had assisted the blacksmith and plaintiff in performing the operations necessary to the work, the additional man assisting in the lifting and sledging of the bar; and that three men were customarily employed in the operations necessary to the making of the bar. There is also evidence tending to prove that the making of the arch bar on December 23, 1931, was a “rush job,” but there is no evidence tending to show that the work in connection with the making of the bar was performed at a rate of speed greater than customary in such operation.

At the conclusion of the evidence in the trial court the defendant moved for a directed verdict on the ground that the evidence did not show an injury within the course of employment. This motion was sustained by the trial court and the jury was directed to return a verdict for the defendant. Motion for new trial was filed and overruled, judgment was entered on the verdict, and this proceeding in error is brought to reverse such judgment.

It is contended by the plaintiff that reasonable minds might conclude that the evidence adduced establishes all the essential elements of the plaintiff’s case, and that it was therefore error for the trial court to direct a verdict in favor of the defendant.

Under the Workmen’s Compensation Act, if plaintiff was (1) an employee, (2) was injured, (3) in the course of employment, he should be (4) compensated.

It is conceded by the defendant that the plaintiff was an employee, was in the course of his employment, and therefore the only question for this court to decide is whether or not there is evidence tending to prove that he sustained an injury within the meaning of the Workmen’s Compensation Act of Ohio.

“The term ‘injury’ as used in the Workmen’s Compensation law of Ohio comprehends only such injuries as are accidental in their origin and cause.” Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199, paragraph 2 of the syllabus.

“An accident is some happening that occurs by chance, unexpectedly, and not in the usual course of events. It is something that might possibly be prevented by the exercise of due care and caution.” In dustrial Commission v. Russell, 111 Ohio St., 692, 146 N. E., 305.

The Workmen’s Compensation Act is construed liberally in favor of employees. Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38, paragraph four of the syllabus; Industrial Commission v. Bartholome, 128 Ohio St., 13, 190 N. E., 193.

Where incapacity results from a natural and gradual wearing away of physical capacity or condition during the regular and usual employment there is no injury which may be compensated under the Workmen’s Compensation law. Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199; Industrial Commission v. Middleton, 126 Ohio St., 212, 184 N. E., 835; Industrial Commission v. Russell, 111 Ohio St., 692, 146 N. E., 305; Industrial Commission v. Davis, 119 Ohio St., 221, 162 N. E., 796; Renkel v. Industrial Commission, 109 Ohio St., 152, 141 N. E., 834; Industrial Commission v. King, 45 Ohio App., 425, 187 N. E., 253.

On the other hand, where an employee engaged in the performance of his regular duties is subjected to extraordinary strain, or other unusual condition distinctive in character and definite as to time and place, resulting in an injury, such injury is an accidental injury within the meaning of the Workmen’s Compensation Act and therefore compensable. Industrial Commission v. Bartolome, 128 Ohio St., 13, 190 N. E., 193; Industrial Commission v. Polcen, 121 Ohio St., 377, 169 N. E., 305; Industrial Commission v. Hineline, 47 Ohio App., 50, 190 N. E., 46; Industrial Commission v. Smith, 45 Ohio App., 362, 187 N. E., 129; Baker v. Industrial Commission, 44 Ohio App., 539, 186 N. E., 10; Industrial Commission v. Gillard, 41 Ohio App., 297, 179 N. E., 514; Industrial Commission v. Dunham, 33 Ohio App., 237, 169 N. E., 36; Industrial Commission v. Betleyoun, 31 Ohio App., 430, 166 N. E., 380.

In the case at bar there is evidence tending to prove that the plaintiff employee was in the performance of his regular duties subjected to extraordinary strain and was working under an unusual condition in that he did extra lifting and sledging occasioned by the absence of the third man ordinarily employed to assist in such operations, and in that the whole operation was performed by plaintiff and one man instead of by plaintiff and two men, as was customarily done. The extraordinary strain was distinctive in character in that it caused pain in the region of the heart and was definite as to time and place in that it occurred suddenly during progress of the work, and this case therefore comes within the rule last mentioned and the injury sustained by plaintiff is within the meaning of the Workmen’s Compensation Act accidental and therefore compensable.

It is further contended by the defendant that the testimony of Dr. Chenoweth and Dr. Tussing to the effect that plaintiff might or could have been injured in the manner claimed by him, not being positively to the effect that the strain caused the injury, was insufficient as a matter of law to prove the causal connection between the claimed strain and the dilatation of plaintiff’s heart. From the facts in evidence other than the medical testimony the jury were authorized in drawing an inference that the strain caused the dilatation, and this evidence, together with the medical testimony, warranted the submission of the question to the jury, and this contention is not well taken.

Industrial Commission v. Weimer, 124 Ohio St., 50, 176 N. E., 886; Industrial Commission v. Hineline, 47 Ohio App., 50, 190 N. E., 46; Spicer Manufacturing Co. v. Tucker, 127 Ohio St., 421, 188 N. E., 870; Industrial Commission v. Gillard, 41 Ohio App., 297, 179 N. E., 514.

It is also contended on behalf of the defendant that there was no evidence tending to prove a trauma and that consequently the injury was not compensable. This contention is also without merit as the dilatation of the heart was in and of itself a trauma, and there is no provision in the Constitution or the Ohio Workmen’s Compensation Act making or requiring an external trauma as a condition precedent to the recovery of compensation.

As for the reasons above mentioned there was evidence tending to prove all the essential elements of the plaintiff’s case, the sustaining of defendant’s motion for directed verdict was erroneous, and the judgment will therefore be reversed and the cause remanded for new trial and further proceedings according to law.

Judgment reversed cmd ccmse remanded.

Klinger, P. J., concurs.

Crow, J.,

dissents on the ground that the happening complained of by plaintiff was not an accidental injury within the Workmen’s Compensation law of Ohio. All the evidence tended to prove that it was caused solely by the nature of his employment. Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199; Industrial Commission v. Lambert, 126 Ohio St., 501, 186 N. E., 89.  