Claim of Joseph v. United Kimono Co.

H. T. Kellogg, J.: The work of the deceased employee was performed upon the ninth floor of a factory building. He was engaged-as a foreman in working upon a machine and in handing out work to the women there employed. On the morning of the day of the accident, he complained frequently of pains in his head. He, nevertheless, continued at work until the early part of the afternoon. At this time one of the factory hands saw him leave the room where he worked and go into an adjoining room, holding his hand to his head as he went. This room was used for showing the factory product, and was empty at the time. .It was lighted by a single window seven feet high by four feet wide, which was usually kept closed. The window sill was three feet wide, and stood two feet six inches above the floor. In close proximity to it and running along its entire width was a radiator which was two feet high and eight inches wide. The deceased had frequently been seen eating his lunch sitting on the sill of the window. Within about five minutes of his leaving the work room one of his employers, observing that the women in a factory on the opposite side of the s.treet were at its windows screaming out excitedly, looked down upon the street and saw the body of the deceased lying on the sidewalk directly below the show room window. One of the partners then rushed through the factory crying out that the deceased had “ jumped out,” or “ must have jumped out ” the window. The deceased when picked up was found still to be alive, but died within a few minutes. After hearing the proof upon the claim filed for his death the Industrial Commission made an award, finding, among other things, that the deceased “ was afflicted either with vertigo or fainting, and as a result he fell from the window to the street, and received injuries as a result thereof, from which he died about one hour later.” It having become firmly established that the occurrence of accidents causing compensable injuries may never be presumed, but must always be proven, the sole question here arising is whether the known facts of the case permitted the inference drawn by the Commission that the deceased came to his death from an accident attributable to his employment. The distance from the floor to the top of the radiator and across the window sill to its outer edge was at least six feet and two [570] inches, so that it is apparent that the deceased could not, while standing on the floor and leaning out the window for the fresh air, accidentally have fallen through the opening. It might be reasoned that the deceased, in a crazed condition caused by the pains in his head, had rushed to the window and thrown himself therefrom. If this were the fact then either the deceased consciously intended to commit suicide, or, if temporarily insane, was impelled to throw himself from the window by causes not attributable to his employment, so that in neither case could there be a recovery. It might be thought that the deceased stepped upon the sill to open the window, and, having raised it, fell down and rolled out through the open-, ing over the ledge. It might be thought that the deceased, having opened the window, sat down upon the sill to rest and voluntarily or involuntarily so moved that his body went over the edge. The difficulty with either set of facts which might thus be surmised to have occurred is that they leave unanswered the vital question: Did the deceased fall down or roll off or move off the window ledge accidentally, or by reason of an attack of vertigo or fainting? The Industrial Commission has found that the latter was the case, but, since the vertigo or fainting were in no wise caused by the employment, that answer to the question would be destructive of the claim. (Minerly v. Kingsbury Construction Co., 191 App. Div. 618; Neuberger v. Third Avenue R. Co., 192 id. 781.) The alternative answer that the deceased accidentally fell or rolled off without having been affected by vertigo or fainting cannot be made because the "facts do not give rise to that inference with any greater certainty than to the inference drawn by the Commission, and it is a well-settled principle that of two equally probable inferences a trier of fact may not employ that which spells liability in preference to that which proves its opposite. It seems to me that from this meagre proof no inference of fact can justly be made that the accident which occurred to the deceased arose from any cause connected with his employment, and, therefore, that the claim must fail. The award should be reversed and the claim dismissed. All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Woodward, J., concurs.