(dissenting). It is of particular importance in this ease to see exactly what the record will sustain in the way of factual findings before it can be decided whether the Workmen’s Compensation Board was right or wrong as a matter of law in holding the employee’s death was due to an industrial accident.
*163Some of the proof is in the record by direct testimony or exhibits; and some of it rests upon circumstantial evidence. If the board’s findings are underpinned by evidence of substance, we are required to take the facts the way the board has taken them; we are not at liberty to draw our own contrary inferences.
The board could find that the decedent, a 68-year-old messenger suffering from arteriosclerotic heart disease, was sent from the employer’s office at 14 Wall Street at 1:35 p.m. to deliver legal documents at a bank at Rockefeller Plaza at 51st Street and that he had arrived there and had delivered his documents by 2:00 p.m.
It could find that he travelled by subway, both because his superior testified he was expected to use the subway and carfare was allowed him for this purpose, and because the distance and time of arrival were such as to make it impossible to have used any alternative form of public transportation. The record contains the statement, undisputed although appellants had the opportunity to dispute it, that this was “ a relatively short interval for the trip ”.
That decedent used the subway on his journey, therefore, is a fact strongly supported circumstantially by all the evidence in the ease. The nearest subway station to the point of destination was the 51st Street Station of the Lexington Avenue Line; and the conclusion that decedent used this station rather than one farther away would not only be warranted by all reasonable inferences, but in the light of the importance of physical activity of decedent from the time he left the subway train to the time of his collapse and death, the shortest distance from station to destination would be the inference most favorable to appellants.
To get from the train to the street at this station it was necessary for decedent to climb 32 steps; and when he reached the street the board could fairly find within this record that decedent met with an unusually cold temperature and that he walked westerly from Lexington Avenue three and one-half to four blocks against a powerful westerly wind.
The Weather Bureau’s temperature reading for 2:00 p.m. was 25 degrees above zero and further showed that the average temperature for that day was 18 degrees below normal average for November 29.
Moreover, a maximum wind velocity of 43 miles an hour was recorded at the Weather Bureau station at the Battery; of 26 miles an hour at Central Park; and of 36 miles an hour at La Guardia Field.
The wind direction was westerly and this velocity was shown to be building up in intensity' and to have reached maximum *164strength at or near the time decedent was walking westerly on the street from the subway station to his destination.
Appellants pursued the argument before the Referee that since Rockefeller Plaza is “ surrounded with tremendously high buildings ’’which could ‘ ‘ ward off wind ” the Weather Bureau’s velocity recordings do not have much significance in this case; but it is not altogether so clear from common experience that the base of high buildings affords much shelter from high wind velocity; or, indeed, that wind effects are not often accelerated near such structures.
In any event these official readings at far separated observation points in New York make it clear that wind of high velocity was general in the area; indeed, the record shows for that date one of the highest velocities recorded in the month, and the actual highest velocity to accompany so low a temperature.
If the appellants desired to show that the wind was not so strong near Rockefeller Plaza, they should have established the fact either directly or by expert testimony; and in the absence of such proof the board would be justified in taking the main office readings of the Weather Bureau at the Battery as prima facie proof of wind velocity in the general area.
Thus the record would sustain the conclusion that decedent left the subway, climbed a long flight of stairs, and walked in unusually cold weather against a powerful wind to his destination. The short time sequence between his leaving Wall Street and his death at Rockefeller Plaza would warrant the further inference that there had been uninterrupted and, for him, strenuous physical effort from the time he left the subway to the time he collapsed and died. This is something more than just the ordinary wear and tear of life.
This circumstantial proof is so cemented into undisputed facts — the time of departure from Wall Street, the time of arrival at destination, the availability and place of location of transit facilities, the conditions of temperature and wind — that the facts are as reliably established from the viewpoint of legal evidence as though a witness had actually seen the decedent make the journey step by step; and, indeed, a witness could add little to what has been made manifest by these facts and what has been found by the board.
When the medical dispute in this case is examined closely it will be seen that the issue between the doctors is very narrow. There is clear and unequivocal association between the strain of the activity and the death by two of claimant’s medical witnesses.
Appellant’s medical witness does not suggest that climbing subway stairs and walking in cold weather against a wind would *165not be competent to cause a heart attack in this decedent’s ease; indeed, he testified that walking in cold weather was a common cause of death in coronary cases: “ We have a great deal of experience along these lines ”.
But his view was that if the cold and wind had any such adverse effect, it would have been manifested earlier on the street and not after decedent had gotten out of the wind into a warm building. He expressed the view that such experiences as subway stairs and cold and wind have no ‘6 cumulative effect ’ ’; when they are over the adverse physical consequence ends rapidly, as is the experience when a cardiac patient is clinically given physical activity tests and then put to rest.
But claimant’s physician’s view was that in this instance there was a cumulative effect of climbing subway stairs and walking in the cold and wind, because the short time sequence strongly indicates that decedent had not rested, but that his activity continued unbroken through the walk to his final collapse, even though he was at the time of actual collapse out of the cold and wind. We think the medical issue, thus framed by the experts is, therefore, very narrow and lies in the area of fact and within the sole province of the board to decide.
That the board could find this to be a case of physical exertion in the work leading to the heart attack and to the employee’s death, and, indeed, a case of unusual exertion and exposure in the course of duty, seems justified by abundant authority. (Matter of Schechter v. State Ins. Fund, 6 N Y 2d 506; Matter of Kehoe v. London Guar. & Acc. Ins. Co., 303 N. Y. 973; Matter of Cramer v. Sunshine Biscuits, 2 A D 2d 719; Matter of Bithorn v. Henry Isaacs, Inc., 282 App. Div. 910.)
The award should be affirmed.
Foster, P. J., and Reynolds, J., concur with Herlihy, J.; Bergan, J., dissents in an opinion, in which Coon, J., concurs.
Decision and award of the Workmen’s Compensation Board' reversed, without costs, and claim dismissed.