Danville, U.&C. Ry. Co. v. Indus. Comm'n

• Decision Date: 21 February 1923
• Docket Number: No. 15063.,15063.
• Citation: 307 Ill. 142,138 N.E. 289
• Court: Illinois Supreme Court
• Parties: DANVILLE, U. & C. RY. CO. v. INDUSTRIAL COMMISSION et al.

307 Ill. 142

138 N.E. 289

DANVILLE, U. & C. RY. CO.

v.INDUSTRIAL COMMISSION et al.

No. 15063.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Circuit Court, Vermilion County; John H. Marshall, Judge.

Proceedings under the Workmen's Compensation Act by Zina Altimus for the death of Cecil Busz, her son, opposed by the Danville, Urbana & Champaign Railway Company, employer. An order of the Industrial Commission granting an award of compensation was set aside by the circuit court, and claimant brings error.

Affirmed.

James Dwyer, of Danville, for plaintiff in error.

Henry I. Green, of Urbana, and action, Acton & Snyder, of Danville, for defendant in error.

CARTER, J.

An application by plaintiff in error for adjustment of claim was filed with the Industrial Commission for the death of Cecil Busz, alleged to have been caused by an accident which arose out of and in the course of his employment by defendant in error on October 10, 1920. The arbitrator found in favor of the applicant, and on review before the Industrial Commission the arbitrator's award was approved. The circuit court set aside the order of the Industrial Commission, and the cause has been brought to this court by writ of error.

Cecil Busz, a son of plaintiff in error, had been working as a bridge repair man for defendant in error since May 20, 1920. A bunk car was furnished by the company to the men engaged in that work, containing beds and a place for the men to eat their meals and a place to cook. The headquarters from which the bunk car started with the employees at the beginning of the week's work was Danville, Ill. It appears that the car would often be out on the railroad away from Danville, and it might be difficult to get meals for the bridge gang where they were working, but that when the car was at Danville over the week-ends, as it was at the time of the accident, there was no benefit to the company by the employees either eating or sleeping in the car. The bridge gang were permitted to eat and sleep there, both out on the road and while they were in Danville. The employees who ate in the car paid for their own provisions, and, as the men were on a 10-hour basis, it is evident that after the working hours of the day on a Saturday afternoon ceased the pay stopped for all of them, including the man who did the cooking. There was no obligation on the part of the men to eat or sleep in the car, but they could do so if they liked. The deceased and one of the other repair men had a private room which they shared together in Danville, and some Saturday nights they stayed in their room and some in the car. There were no particular restrictions upon the use of the car, either during the time the men were working or at the week-end intervals. The evidence shows that there was an instruction by the foreman of the bridge gang that the last man using the light in the bunk car at night should disconnect the trolley pole from the trolley wire, and this was apparently a general order, for the purpose, as one of the witnesses stated, of preventing the plug from being pulled out in case the car was moved in the night. The bunk car had been used on the day of the accident, Saturday, October 10, 1920, and it is admitted that the men quit work about 5:30, some of them, including Busz, going to their private rooms in Danville. The evidence shows that Busz changed his working clothes for his better clothes and spent the evening in town, returning to the car about 11 o'clock with some of the other men. All of those in the car went to bed just before the accident happened, except Busz, who stayed up to read. As we understand the record, there was a flexible insulated wire which connected with the electric light plug in the car and ran outside the car, where it was fastened to a pole, terminating in a hook of bare, stiff wire at the end of the pole. When the hook was put across the trolley wire by means of the pole the electric current supplied the light. About midnight some of the men in the car heard Busz call for help. His body was found about 10 feet from the end of the bunk car, lying across the ends of some rails which were piled there. The hook was on the trolley wire, but the plug was pulled out of the socket in the car and the lights were out. There is no testimony in the record as to how the accident happened. One of the men testified that he heard Busz pass his bed, and in a very sort time thereafter heard the cry for help. Busz's neck was broken, and there were electric burns on one hand. He was clad only in his underwear. He was dead before the arrival of the doctor, who was sent for as soon as the men learned of the accident.

The only question in the case is whether the accident was one arising out of and in the course of the employment. Contrary conclusions are sought to be drawn from the evidence by the arguments of the respective counsel in passing on the contract of employment, counsel for plaintiff in error suggesting that Busz was practically engaged in a continuous employment and subject to be called at any time while counsel for defendant in error argue that the evidence shows the employment was for a definite time of 10 hours per day, and that Busz was not subject to a call at any time outside of those hours. The only positive testimony in the record is that the employment was on a 10-hour basis, and that nothing was said at the time of the employment by defendant in error or its agents about its employees being ready for emergency work, including night work, and the evidence shows there had never been during...