188 A. 470

MARGARET F. AHERN, Adm’x v. ELDREDGE BREWING COMPANY, INC.

Supreme Court of New Hampshire Rockingham.
Decided December 1, 1936.

A trier of fact cannot be permitted to determine by guess or conjecture between two equally probable causes of an injury for only one of which the defendant is liable. Hence in a petition for workman’s compensation under P. L., c. 178 a finding that the workman’s death “arose out of” his employment is not sustainable where the evidence equally justifies either the conclusion that death was due to a disease adequate in itself to cause death at any time or that the efforts of the workman to escape from asphyxiating gas so aggravated the disease as to cause death. The finding that death occurred by “accident” and “in the course of the employment,” within the meaning of the act, is sustainable where the employee’s death was due either to coronary thrombosis alone or to an aggravation of that disease by the excitement and strain occasioned by his efforts to escape from inhaling carbon dioxide gas while engaged in his work. The probability of an occurrence cannot be established by evidence of its mere possibility.

PETITION, for compensation under the employers’ liability and workmen’s compensation act (P. L., c. 128). Trial by the court, who found the facts and entered judgment for the plaintiff in the sum of $4,500. At the close of the plaintiff’s evidence and again at the close of all the evidence, the defendant moved that the petition be dismissed. These motions were denied and the defendant excepted. After the findings of the court had been filed, the defendant also excepted to the denial of its motion “to set aside the verdict.” From the findings of the court and the evidence which is made a part of the case, the following facts appear.

Michael Ahern, the plaintiff’s decedent, was employed by the defendant in the “tun room” of its brewery in Portsmouth. In this room there are eight tuns, or vats, each of which is fourteen feet, six inches in diameter and seven feet, six inches high. Inside each tun circular copper coil, designed to regulate the temperature of the vat when full, which parallels the walls of the vat at a distance of two and one-half to three feet. Entrance to the vat, when empty, was obtained by the use of a seven-foot ladder set between the side of the vat and the coil and resting against the former. In the tuns above described, the beer produced by the defendant was brewed

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for a period of seven days, and at the end of that period was withdrawn through a valve in the bottom of the tun. During the brewing process, carbon dioxide gas is generated. This gas is heavier than air, odorless, colorless, and non-poisonous, but if present in sufficient density, may cause death by suffocation. During the brewing process this gas tended to remain inside the tun above the surface of the liquid, which came within about one foot of the top of the tun. When the beer was withdrawn, this gas, being heavier than air, followed the surface of the beer down to the bottom of the tun. Although in itself odorless, the carbon dioxide gas resulting from the brewing process carries with it the pungent odor of hops.

It was the duty of Mr. Ahern, after the beer had been withdrawn from a tun, to remove a brass plug in the bottom thereof for the purpose of draining the sediment which remained after the process was complete, and in order to remove this plug, it was necessary to go into the tank. Before entering the tank for this purpose, it was his duty to wash down the sides of the tun by means of a hose for the purpose not only of cleaning the tank but of dissipating the carbon dioxide gas there present.

Upon March 21, 1935, the plaintiff’s decedent was found dead in number 8 tun, lying flat on his back with his head between the coil and the side of the tun, with his pipe and one of his rubbers lying at the foot of the ladder, and the ladder itself tipped over against the coil inside the tun. After the discovery of Mr. Ahern’s body, Charles C. Primmerman, an operating engineer of the defendant, descended into the tun for the purpose of rescuing Mr. Ahern. He testified that when he reached the bottom of the ladder he took two steps toward Mr. Ahern and took hold of his hand with the intention of raising him to an erect position; that as soon as he leaned over for this purpose, he immediately felt that his senses were beginning to leave him; that his knees buckled and he seemed to lose strength in his arms. He turned at once for the purpose of leaving the tun by means of the ladder and as he attempted to climb out, the top of the ladder pulled away from the side of the tun and nearly precipitated him to the bottom again. He was able to force the ladder back against the side of the tun, but was so weak that he had to be assisted out of the tun.

The defendant’s brew master testified that Mr. Ahern had apparently gone into the tun immediately after the brew had been withdrawn without washing down the sides of the tank as above described, and that, under these circumstances, he would have

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encountered a much greater density of carbon dioxide gas than if the customary procedure had been followed. Transferred by Johnston, J.

Hughes Burns (Mr. Burns orally), for the plaintiff.

Arthur E. Sewall and Thomas L. Cleaton (Mr. Sewall orally), for the defendant.

BRANCH, J.

By its motion to dismiss the petition at the close of the evidence and its subsequent motion to set aside the “verdict,” the defendant clearly raised the question of the sufficiency of the evidence to support the essential finding of fact made by the trial court, which reads as follows: “I find that death was due to coronary thrombosis aggravated by excitement and strain occasioned by Mr. Ahern going into the tun much earlier than was the practice and without dissipating the gas as instructed and so encountering a greater density of the pungent and suffocating gas than usual and that said death was accidental and arose out of and in the course of the deceased’s employment.” It is plain enough that Mr. Ahern’s death was “accidental” as that term is defined in Guay v. Company, 83 N.H. 392, and also that it occurred in the course of his employment. The vital issue in this case is whether it “arose out of” his employment.

The court in the above quoted finding rejected the medical testimony of the plaintiff to the effect that Mr. Ahern’s death was caused by asphyxiation by carbon dioxide gas, and adopted the conclusion of the medical referee that it resulted from coronary thrombosis. This term denotes the plugging of the coronary artery by a blood clot which, in itself, is a sufficient and common cause of death. The court’s finding postulates a preexisting condition of this kind, although the plaintiff’s evidence tended strongly to disprove it, which was aggravated by excitement and strain. The conclusion that a master should be charged with liability to pay compensation upon the ground that the conduct of his servant aggravated an existing pathological condition which was, in itself, an adequate cause for the servant’s subsequent death, is one which does not readily command acceptance.

The plaintiff does not attempt to defend the finding of the court upon the theory of aggravation, but rather upon the theory of causation. It is argued that “the evidence is conclusive that the coronary thrombosis from which it is claimed the deceased did die, was accidental in that it resulted from a strain on the part of the

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deceased in attempting to escape or extricate himself from the presence and effect of carbon dioxide gas.” The theory upon which this argument rests was set forth in the questions propounded by plaintiff’s counsel to the medical experts, of which the following are typical:

From the testimony of Dr. Luce: “Q. Now assume, Doctor, that Mr. Ahern had coronary trouble or heart trouble and he didn’t know it and never showed any symptoms of it and went into this tun under the conditions as I have described to you and was overcome or affected by this gas and attempted to go out of that tun by means of the ladder and this ladder slipped out of place, what effect would that have and whether or not that would produce a strain which would cause coronary thrombosis and death? A. It would.”

From the testimony of Dr. Gray: “Q. Assume Mr. Ahern was suffering from coronary thrombosis or heart trouble and he went down into the tun and came in contact with the gas and in his struggle to get out he attempted to climb that ladder and the ladder slipped away from the wall as it did with Mr. Primmerman and precipitated him down into the tank again, would that have produced a strain on his heart which would cause coronary thrombosis? A. It might cause it. Q. And it probably would? A. Not necessarily. Q. Well it could? A. It could, yes.”

More fully stated, the plaintiff’s argument is that Mr. Ahern reached the bottom of the vat in safety; that he then stooped over to unscrew the brass plug and thus brought his face in contact with the carbon dioxide gas which was collected in the lower part of the tun; that upon discovering the presence of the gas, he became excited and hurriedly attempted to get out of the tun by climbing the ladder; that in so doing, he pulled the ladder away from the wall and was precipitated to the bottom of the vat again, and finally that the resulting strain produced the thrombosis from which he died.

The trouble with this argument is that the case is bare of evidence of what Mr. Ahern’s movements were after he started to enter the tank. The theory of the defendant that he died on his way down the ladder as a result of the thrombosis finds quite as much support in the evidence as the plaintiff’s theory that he fell while on his way up the ladder and suffered a strain which caused the thrombosis. The absence of all physical evidence of a struggle and the composed manner in which his body lay on the floor of the tank, lends color to the defendant’s theory. The plaintiff’s argument is obviously suggested by the testimony of Mr. Primmerman, and is in substance that the

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deceased may be found to have reacted in precisely the way that Primmerman did, to the presence of gas in the tun. This is pure speculation if for no other reason than that it assumes as a fact that the deceased reached the floor of the tun in safety, a point upon which the evidence is silent. Under these circumstances the conclusion of the trial court that “said death . . . arose out of . . . the deceased’s employment” cannot be sustained.

This case is governed by the rule that a trier of fact cannot be permitted to determine by guess or conjecture between two equally probable causes of an injury, for only one of which the defendant is responsible. Deschenes v. Railroad, 69 N.H. 285. The issue here differs materially from that in Boucher v. Larochelle, 74 N.H. 433, where death resulted from chloroform and there was evidence of the defendant’s negligence in the method of administration. It was there held that the question of causal negligence was properly submitted to the jury, although there was evidence that “the mere administration of chloroform to persons in a certain rare and obscure pathologic condition is sufficient to cause death.” We do not question the soundness of the conclusion reached in that case to the effect that “where the injury is a natural and probable result of the negligence charged, a wrongdoer `cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done.'” Ib. 435; Bresnahan v. Company, ante, 273. We think, however, that the present case is governed by the more general rule, to which reference is also made in the same opinion, that where the evidence discloses no connection between the injury and the alleged cause except a bare possibility that the former resulted from the latter, there is nothing for the jury where it is also possible that the injury may be due to other causes. Deschenes v. Railroad, supra; Dame v. Company, 71 N.H. 407; Reynolds v. Company, 73 N.H. 126; Clark v. Sharpe, 76 N.H. 446, 447; Nadeau v. Stevens, 79 N.H. 502; Russell v. Railroad, 83 N.H. 246, 249. Some evidence tending to establish not only the possibility but also the probability that excitement and strain resulting from an encounter with suffocating gas aggravated a preexisting physical condition and thereby caused Mr. Ahern’s death, was, under the theory of the trial court, a necessary element of the plaintiff’s case, and in the absence of such evidence, the finding in his favor cannot be sustained.

Petition dismissed.

PAGE, J., was absent: the others concurred.

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