Claim of Smith v. F. & B. Construction Co.

By the award appealed from claimant has been compensated for the “ permanent loss of use of the right eye, considered as the equivalent of the loss of such eye.”

With the use of powerful glasses he has a vision of about one-third with that eye, but in order to obtain it he must close the other eye. In any event he can-only have one eye, and if he uses the injured eye he has the vision of but one-third of an eye.

The case differs from Frings v. Pierce Arrow Motor Car Co. (182 App. Div. 445) where by the use of glasses claimant had the normal vision of the injured eye. There, without glasses, he had vision of but one eye and with the use of glasses had the normal vision of the other eye only. In any event he had the full vision of one eye and could use either eye at pleasure. But here, to get a third vision from the right eye, he must forego entirely the use of. the left eye. I think the rule in the Frings case should not be extended beyond the facts there found. I favor an affirmance of the award.

All concurred, except Lyon, J., dissenting.

Award affirmed.