Claim of Gallagher v. Steers & Morrison-Knudsen 12 A.D.2d 830

The employer and carrier appeal from an award of death benefits. The Workmen’s Compensation Board has found that decedent’s death was accidental. Appellants contend that it was a case of suicide. Decedent was last seen alive on July 24, 1957, in the men’s washroom of the employer’s premises on the 27th floor of a building at some time between 2:30 p.m. and 3:15 p.m. Shortly thereafter his badly mangled body was found in the courtyard of the building. There was a large window in the washroom which concededly was open and usually kept open. There was a sink very close to the window. The bottom sill of the window was 2 feet above the floor. A radiator in front of the window was 1 foot 8 inches high. Decedent’s body was found approximately 39% feet from the vertical plane of the washroom window. The window was 344% feet above street level. On the 25th floor of the building there was a ledge which projected outward 1 foot 10 inches, and on the 24th floor a ledge projecting 4 feet 3 inches. There is evidence that decedent had been hospitalized in June, 1956, and remained away from work until September, 1956, and that he worried about his health. There is evidence that he had dizzy spells and shortness of breath; that he was happily married, had two children, owned his own home free and clear and had no financial worries. He had returned from vacation the day before his death and appeared happy and rested. The case was thoroughly tried on both sides and the evidence is too extensive to discuss in detail. Appellants lean heavily upon the testimony of an expert to the effect that if the body “ fell ” from the window, without the propulsion of a jump, it would not have landed 39% feet from the building. This evidence was disputed and was based upon the assumption that the body did not carom off a ledge. The board has found that the presumption against suicide under section 21 of the Workmen’s Compensation Law has not been overcome by substantial evidence. All of the evidence tending to overcome the presumption is disputed, and it is for the board to weigh conflicting evidence. Viewing the record as a whole we may not say, as a matter of law, that the presumption was overcome by “ substantial evidence to the contrary ” (Matter of Graham, v. Nassau & Suffolk Lighting Co., 308 N. Y. 140; Matter of Ackerman v. Dairymen’s League Co-op. Assn., 10 A D 2d 112, motion for leave to appeal denied 8 N Y 2d 706.) Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan P. J Coon Gibson, Herlihy and Reynolds, JJ. ’’