Opinion
Submitted October 25, 1935 —
Decided January 31, 1936.
On appeal from the Supreme Court, in which the following per curiam was filed:
"This is essentially a fact case. An accident arising out of and in course of employment was admitted. Petitioner was treated and compensated for a fracture of the great toe. Later, he filed his petition claiming that he had been caused to fall backward at the time of the accident, sustaining permanent injury to the left leg. This was tried out before a deputy commissioner, who stated in his decision: `Petitioner claimed that an existing atrophy of the left leg was the result of the trauma, but from the medical testimony I feel that the said atrophy existed prior to the said accident of July 3d 1933, and that the said trauma did not in any way aggravate the condition.' The petitioner appealed to the Common Pleas, which on the testimony taken before the bureau reversed, stating in the determination that the accident caused `him to fall backwards to the floor striking his back and causing him injury to the sciatic nerve, which caused an atrophy and foot drop of the left leg.' Accordingly, that court awarded compensation with costs and counsel fee. The present writ runs to that judgment.
"For the petitioner, it is urged that as there was some evidence supporting the finding of the pleas, this court will not reverse on weight of evidence. Such is not the rule, since the amendment of 1921, at page 735, preserving `the jurisdiction of the Supreme Court to review questions of law and fact by certiorari.' We have held in a number of cases, as for example the recent case of Yoshida v. Nichols, 12 N.J. Mis. R. 197, that where the bureau and the pleas are in accord on the facts, their conclusions should not be lightly disturbed; see, also, Mountain Ice Co. v. Durkin, 6 N.J. Mis. R. 1111 ; affirmed, 105 N.J.L. 636 , but even in such a case, this court examines and weighs the evidence. In the case at bar, as we have seen, the two inferior courts have disagreed; it remains for us to decide between them. Our conclusion is, that the finding of the pleas, on the admitted or fully proved facts of the accident, of a subsequent general and decided atrophy of the leg which the doctors agreed might well follow a traumatic injury, on the evidence of the man itself that both legs had previously been strong and healthy, and alike, and the medical evidence which tended to exclude other causes as syphilis, for which the test was negative, or infantile paralysis, diphtheria, c., negatived by petitioner's general testimony as to his good health and strength and the heavy work he did before the accident, justified the court in finding that the atrophy resulted from the accident. The evidence is far from satisfying us to the contrary.
"The judgment will accordingly be affirmed. There is some criticism in the brief of prosecutor, directed to the memorandum opinion in the pleas, but we are reviewing the determination expressed in the record."
For the appellant, Wall, Haight, Carey Hartpence.
For the respondent, Henry Harris.
The judgment under review should be affirmed, for the reasons expressed in the opinion of the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 11.
For reversal — None.