Mallory's Case

Braley, J. It is urged that the claim for compensation should be disallowed because it does not appear from the record that any notice of the injury had been given as required by St: 1911, c. 751, Part II, §§ 15,16. But it appears that a notice in writing as required by the statute was actually given to the insurer, the only possible error in which-was that the date of the accident was given as April 18 instead of April 17, and it is .unnecessary to consider the effect, if any, of any question of variance, for, the counsel for the insurer having expressly stated before the Industrial Ac [227] cident Board that “he did not wish to raise any question as to the giving of the notice of the injury,” it cannot when defeated contend for the first time in this court on appeal that the notice was insufficient. Cleveland v. Welsh, 4 Mass. 591. Brown v. Webber, 6 Cush. 560, 563. Dole v. Boutwell, 1 Allen, 286, 287. Oulighan v. Butler, 189 Mass. 287. The argument for reversal on the merits is, that there was no evidence warranting a finding that the deceased employee received an injury in the course of or arising out of his employment and that, the finding of the board having been based on mere conjecture, the decree awarding compensation to the widow must be reversed. We are not concerned with the weight of evidence or the credibility of witnesses, and the findings of fact in the report of the single member of the board which were affirmed and adopted on review must stand unless plainly unwarranted. Herrick’s Case, 217 Mass. 111. The uncontroverted evidence recited in the report shows that the employee, a stock cutter, while carrying a plank from a pile of lumber in the mill yard to the saw where he worked dropped the plank on his foot, and on his own statements, which were admissible, and the evidence of his wife and of the physician who attended him before his removal to the hospital, it properly could be found that the blow injured the big toe of his left foot causing a ragged cut extending perhaps three quarters of an inch across the base of the nail from which blood oozed. But, if the finding that the injury arose out of and in the course of his employment is amply sustained, the further finding is, that the employee died of septicemia, or blood poisoning. It is upon this finding that the principal contention of the insurer rests, that the injury described was not the cause of the employee’s' death. It was said in Madden’s Case, 222 Mass. 487, 495, “The substantial question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause.” The narration of'his objective symptoms as given by his wife after he returned home on the day of the accident is, that both the toe and foot were swollen and “turned a purplish red” and the next day “the foot was puffed up; the toe, the foot and leg were puffed up to about the knee. It looked as if it were burst open. ... It was a dark color, a reddish purple, dark red.” The physician who attended him and [228] arranged for his admission to the hospital where he died three or four days after the injury • substantially corroborated the evidence of the widow. It is argued that his injuries were insufficient to cause septicemia in so brief a period, and the autopsy revealed a septic condition of the left knee vfith general septicemia. It also disclosed that the knee joint which was found to be infiltrated with from three to four ounces of thin pus was the primary seat of the infection. If in connection with these apparently undisputed facts the question of the cause of death rested solely on the medical evidence of the hospital staff, the employee’s condition did not arise from the injury, as he was then suffering from septic arthritis which had developed general septicemia in his system to which his death was solely attributable. The widow and claimant, however, was not conclusively bound by the evidence introduced by the insurer and, having presented evidence which warranted a finding that the blow from the plank would be sufficient to cause the septic conditions previously described and which caused his death, we cannot say as matter of law that the conclusion was wrong. Crowley’s Case, 223 Mass. 288, 289. Madden’s Case, 222 Mass. 487. The rulings requested by the insurer were refused rightly and the decree shtíuld be affirmed. Ordered accordingly.