Plass v. Central New England Ry. Co. — 155 N.Y.S. 854

Majority

p. 854

PLASS v. CENTRAL NEW ENGLAND RY. CO.

(No. 257/76.)

(Supreme Court, Appellate Division, Third Department.

November 10, 1915.)

Headnote

1. Master and Servant <s=s>87%, New, vol. 16 Key-No. Series—Injuries to Servant—Workmen's Compensation Act.

Where one employed to cut grass on a railroad right of way was infected with poison ivy, and by reason of that succumbed to bronchitis, the death was accidental, within the Workmen’s Compensation Law, and not the result of an occupational disease; hence compensation could be properly awarded.

2. Master and Servant <©=250%, New, vol. 16 Key-No. Series—Review— Workmen’s Compensation Law.

Findings of fact by the Workmen’s Compensation Commission cannot be reviewed on appeal.

<gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from State Workmen’s Compensation Commission.

Proceeding by Jane Plass for compensation under the Workmen’s Compensation Law for the death of her husband, an employe, against the Central New England Railway Company, employer and self-insurer. From an award by the State Workmen’s Compensation Commission, defendant appeals. Affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Edward R. Brumley, of New York City, for appellant.

The Attorney General (E. C. Aiken, Deputy Atty. Gen., of counsel), and Jeremiah F. Connor, of New York City, for respondent.

Harry Arnold, of Poughkeepsie, for claimant.

Plass was a section laborer, and, as such, in the course of his employment, was mowing the right of way of the appellant’s railway. This was done every year, and the men were engaged several days in performing that duty. The object in mowing the grass was for the safety of the bridges, the adjoining properties, to keep fires from spreading, and to prevent the grass coming up on the tracks, thus causing the engines to slip. In the grass was growing poison ivy and other weeds, and while mowing Plass came in contact with the ivy and was poisoned, became sick and confined to his bed, resulting in blood poisoning, where he contracted congestion of the lungs, from which he died August 29, 1914. The remote cause of his death was the ivy and septic poisoning, and the immediate cause of his death was acute congestion of the lungs, to which his poisoned condition predisposed him. Such are the findings of the Commission.

[1,2] It has been held that contact with poison ivy which results in death is an accidental death within a policy covering death by external, violent, and accidental means. Railway Ass’n v. Dent, 213 Fed. 981 , 130 C. C. A. 387 , L. R. A. 1915A, 314. _ The injury cannot be called an occupational disease. Plass actually, inadvertently, came in physical contact with poison ivy.- The poison to his system caused thereby resulted in his sickness, and reduced his power of resistence, and made him susceptible to bronchitis. The attending physician treat

p. 855

ed him for ivy poisoning, and then found he had developed more or less infection, the blebs breaking open, and in that way he became infected, and while in bed contracted bronchitis, which afterward developed oedema of the lungs, and he died quite suddenly.

The Commission has found that the ivy and septic poisoning was the remote cause of his death, and that his poisoned condition predisposed him to the acute congestion of the lungs of which he died. We arc not at liberty to review the findings of the Commission upon a question of fact. There is certainly some evidence to warrant the finding.

The award is therefore affirmed. All concur.