A. DEFINITION OF ACCIDENT

The nature of an accident, with illustrative cases, has been presented in Bulletin 81, pages 48-50. Heat prostration, frost bite, fainting, dizziness, nervous breakdown, strain and contraction of communicable disease may be compensatable accidents according to precedents set forth in Bulletin 87, pages 46–53. Further instances illustrative of these forms of accident, as well as instances establishing the compensatability of inhalation of poisonous fumes or vitiated atmosphere and of exposure to drafts of air, are presented here.

1. HEAT PROSTRATION

Seven fatal cases of heat prostration passed upon by the Commission occurred late in July and early in August, 1917, the hottest period of an unusually hot summer. Four of the cases occurred on August 1st. Five occurred outdoors and two indoors. Of the outdoor accidents, three were sunstrokes of drivers and two sunstrokes of workers upon roofs. In denying death benefits to beneficiaries of two drivers, the Commission held that their exposure to the sun had been no greater than that of members of the community in general, but the claimants argued that their exposure had been greater than that of other workers because their work had taken them into the sun: Campbell v. ClausenFlanagan Brewery, Death Case, No. 46306, Dec. 12, 1917; Zawicki v. Reid Ice Cream Co., S. D. R., vol. 16, p. 509, Bul., vol. 3, p. 199, May 10, 1918. In affirming with opinion the Commission's denial in the Campbell case the Appellate Division quoted a rule stated by Commissioner Mitchell to effect that a case of heat prostration must be aggravated by special and increased hazard due to the employment in order to be compensatable. The court's opinion is as follows:

CAMPBELL V. CLAUSEN-FLANAGAN BREWERY, 183 App. Div. 499, July 1, 1918. COCHRANE, J.: The deceased employee died as the result of heat prostration on August 1, 1917, after a prolonged period of excessive heat. He was a driver of a brewery wagon engaged in delivering beer. He began work at seven o'clock in the morning of the day of his death and delivered ninety-one half barrels of beer at eleven places in Flushing, N. Y. About three o'clock in the afternoon of that day he was driving the brewery wagon

about five miles from the city of New York when he stopped the horses, alighted from the wagon, and walked around apparently suffering from the heat. In about ten minutes he dropped dead having uttered no word after he alighted from the wagon.

The Commission finds that the heat prostration which resulted in death was an accidental injury which arose in the course of the employment but that it did not arise out of the employment.

The question is whether the deceased by reason of his employment was subjected to a special and increased hazard not common to the public in general but because of the particular circumstances under which he was required to work. The principle applicable to such cases is correctly stated by Commissioner Mitchell in Hernon v. Holahan (14 State Dept. Rep. 597). In that case the employee sustained a sunstroke while working in a close car with very little air. The Commissioner said: "The deceased was required to work on a very hot day in a close car handling lumber, which required great exertion. This work under these circumstances, therefore, subjected him to a special and increased hazard. The deceased sustained a sunstroke, not by reason of a risk assumed by the public in general, but because of the special circumstances under which he was required to work." An award was made in that case which was affirmed by this court in 182 Appellate Division, 126. So, also, in Days v. Trimmer & Sons, Inc. (176 App. Div. 124) an award made to the claimant for a frostbite was sustained on the ground that "the claimant by reason of his employment in handling wet coal in the storm was specially affected by the severity of the weather." Cases of sunstroke and frostbite, both arising from extreme weather conditions, although of opposite extremes, seem to be analogous. The distinction between those cases and the present case made by the Commission itself indicates that the Commission is under no misapprehension as to the legal question involved and that its determination herein is based on its belief that the work in which the deceased was engaged did not contribute to his death.

The facts in this case are undisputed. The question as above enunciated depends on inferences to be drawn from such undisputed facts. Whatever answer the Commission gives to the question finds support in the evidence and is binding on this court. Thus in Days v. Trimmer & Sons, Inc. (supra), it was said by this court speaking through LYON, J., "that the injuries arose out of the employment was fairly a question of fact for the determination of the Commission, and it was fully justified in finding from the evidence" that the claimant was specially affected by the weather conditions. He further said in reviewing cases from other jurisdictions where it was held that frostbites did not arise out of the employment: "In those cases the court found that the man was not specially affected by the severity of the weather by reason of his employment, and the appellate court held that. such finding was one of fact and binding." In the Days case as here the evidence was uncontradicted but the proper inference to be drawn from such uncontradicted evidence was held to be a question of fact.

"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." (Matter of Heitz v. Ruppert, 218 N. Y. 148, 153.)

It was a question of fact for the Commission to determine whether the deceased was specially affected by the severity of the heat by reason of his employment. Although earlier in the day his duties required him to unload a large number of half barrels of beer, he had completed that work and was returning to the brewery. It does not appear how long an interval of time elapsed between unloading the beer and his death. He was accompanied by an assistant who presumably exerted himself as much as the deceased and who testified that he did not work harder on the hot days than on other days, and that he was not specially affected by the heat except that it caused him to perspire. There was a large umbrella on the wagon as a protection from the rays of the sun. Apparently the deceased was returning from Flushing to New York and while riding along the highway in the ordinary manner he was overcome by the heat. From all the circumstances the Commission was justified in drawing the inference that the heat prostration which caused his death did not arise "out of" his employment, and that conclusion is not reviewable.

The decision is, therefore, affirmed. Decision unanimously affirmed.

In the third driver case, the Commission awarded death bene fits for sunstroke of a driver's helper upon the ground that the employer had kept the deceased employee at his employment after he had complained of the heat; the Appellate Division affirmed the award unanimously and without opinion: Brockelbank v. Funk, S. D. R., vol. 15, p. 651, Bul., vol. 3, p. 156, Mar. 14, 1918; 186 App. Div. 924, Nov. 13, 1918.

Death benefits were awarded in the two cases of workers upon roofs because of special heat hazards arising out of their employments. In one of them reflection of the sun's rays from new shingles aggravated the exposure. The Commission said:

SCHATTNER V. STANDARD BUILDINGS, S.D.R., vol. 18, p. 544, Oct. 30, 1918, in part.

The exposure to the sun by reason of the direct rays on the building, together with the reflection of such rays, as well as the shingles being new and attracting the sun, subjected William H. Schattner to a greater hazard than carpenters would be subject to while engaged in their occupation on that day.

The Appellate Division heard argument in the Schattner case, and dismissed the appeal January 8 and 14, 1919.

In the other roof accident, the vapors of boiling tar aggravated the heat of the day and the workman, collapsing, upset the tar upon himself: Bauman v. Empire City Roofing Co., Bul., vol 3, p. 154, Mar. 14, 1918.

The two cases of indoor heat prostration were decided in favor of the claimants. In the one, the Commission granted, and the Appellate Division unanimously affirmed an award to the widow and children of a fireman prostrated by the heat of a boiler room: Bates v. Plattsburgh Gas & Electric Co., S. D. R., vol. 17, p. 612, July 15, 1918; 186 App. Div. 932, Nov. 22, 1918. In the other, the Commission at first denied, but later granted death benefits to the widow of a bakery employee overcome by heat in a large room in which probably one hundred other men worked throughout the day of his accident without incurring injurious effects, and the Appellate Division unanimously affirmed the award: Gregorkiewicz v. National Biscuit Co., S. D. R., vol. 18, p. 549, Bul., vol. 4, p. 29, Oct. 15, 1918; Case No. 50651, Feb. 4, 1919; 188 App. Div. 985, June 30, 1919.

A year later than the above seven accidents another hot season furnished a case of fatal sunstroke for which the Commission awarded death benefits (S D. R., vol. 19, p. 439). The Appellate Division reversed this award and remitted the claim to the Commission for further consideration, because the Commission had not determined whether or not the sunstroke had been due to special and increased hazards of the employee's work. The court cited Campbell v. Clausen-Flanagan Brewery, text of which appears above. Its opinion is as follows:

BREZZENSKI V. CRENSHAW ENGINEERING Co., 188 App. Div. 511, June 30,

1919.

H. T. KELLOGG, J.: The deceased became prostrated with the heat while at work along the tracks of an elevated railway, at about four-thirty o'clock in the afternoon of August 9, 1918, and died the following day. He had been engaged for many hours on the elevated structure, moving up and down in the full glare of the sun, carrying bolts and material to workmen, and flagging trains to warn them of repair work then in progress. It was eightyeight degrees Fahrenheit in the shade between the hours of four and five P. M. upon that day. The day, evidently, marked the conclusion of an intense heat wave, for on the fifth the maximum temperature was ninety-one, on the sixth ninety-three, on the seventh one hundred and two, and on the eighth ninety-four. The Commission found that the deceased came to his death from a heat stroke arising out of and in the course of the employment. In Campbell v. Clausen-Flanagan Brewery (183 App. Div. 499) it was said of a sun stroke case: "The question is whether the deceased by reason of his employment was subjected to a special and increased hazard not common to the public in general, but because of the particular circumstances under