Claim of Klein v. George W. Stiles Construction Co.

in the regular course of his employment on January 15, 1919.” There is no evidence in the record contradicting what took place at the time it is urged he was injured, viz., while standing on the ground he threw up one of his legs so as to bring his foot against the joist which was elevated upwards of two feet above the ground where he was standing and that the other foot on the ground slipped in the mud and that he complained and showed in his face and actions that he had received an ■ injury then and there. Appellants’ ground of contest is that death resulted from a previous diseased condition of the heart. This question was sharply litigated before the Commission; medical experts were called as witnesses by both parties, and on this question expressed divergent views. The condition of the heart, upon which the opposition to claimant was based, was described by deceased’s physician. He had attended him when he had pneumonia in 1918, and previous for a sprained knee, and the history of the medical case disclosed that he had had measles when a boy, and previous pneumonia when about "eighteen years of age; he was about twenty-eight years old when he died, and at one time he suffered from a couple of fractured ribs. He had examined his heart before the time of the alleged accident, and found what he described in the following answer to a question asked of him: “A. The condition of the heart, there was a systolic murmur but no sign of any diseased condition of the heart; there was no hypertrophy of the heart at that time ” (1918), and in reply to a question from the Commissioner he said there was no dilatation. He further testified: “ There may be some little defect of the valve or in the approximation of the valves ” as the cause of the systolic murmur. Systole means the contraction of the heart and arteries, and decedent’s physician testified that it did not necessarily mean loss of compensation. Hypertrophy means the abnormal increase in the size of an organ. Dilatation of the heart means an increase in size of one or more of the heart cavities from weakening of the muscles. After the injury the last two conditions of the heart were manifest. The evidence of appellant’s experts is to the effect that the first condition, systolic murmur, being present, developed into the last two conditions, and while the strain might have taken place as described by claimant, yet the

heart was ripe for the breakdown from such strain or from any other unusual exertion. As heretofore observed, the contest was sharp upon this point, and claimant’s position was ably assailed, yet her position is not devoid of support in the evidence, and as Mr. Justice Cochrane said in Campbell v. ClausenFlanagan Brewery ( 183 App. Div. 499 ), quoting from the opinion in Matter of Heitz v. Ruppert ( 218 N. Y. 148 ): “ ‘ Where conflicting inferences from the same facts are possible, different triers of facts may draw different conclusions, and the weight of evidence is not for consideration in this court.’ ” In Matter of Carroll v. Knickerbocker Ice Co. ( 218 N. Y. 435 ), the court, speaking of section 68 of the Workmen’s Compensation Law, and of that statute generally, says: “That section does not declare the probative force of any evidence, but it does declare that the aim and end of the investigation by the Commission shall be ' to ascertain the substantial rights of the parties.’ * * * The act may be taken to mean that while the Commission’s inquiry is not limited by the common law or statutory rules of evidence or by technical or formal rules of procedure, and it may in its discretion- accept any evidence that is offered; still in the end there must be a residuum of legal evidence to support the claim before an award can be made.” Legal evidence on the part of the claimant was submitted on the hearing before the Commission and, therefore, does not come under the criticism found necessary in Carroll v. Knickerbocker Ice Co. (supra). Nor do I think it comes within the rule laid down by Mr. Justice H. T. Kellogg in his very able opinion in Richardson v. Greenberg ( 188 App. Div. 248 ). While a slight defect, in an otherwise healthy heart, existed before the day of the injury, it was not presently fatal; it was not necessarily remotely fatal, if at all, which contention the evidence fairly upholds, except the evidence of experts based upon hypothetical questions. So far as any previous personal history of the case was concerned, they did not have it.

A question of fact was presented and the award should be affirmed.

Award unanimously affirmed.