Mishawaka Rubber & Woolen Mfg. Co. v. Walker

• Decision Date: 04 April 1949
• Docket Number: 17836.
• Citation: 84 N.E.2d 897,119 Ind.App. 309
• Court: Indiana Appellate Court
• Parties: MISHAWAKA RUBBER & WOOLEN MFG. CO. v. WALKER et al.

84 N.E.2d 897

119 Ind.App. 309

MISHAWAKA RUBBER & WOOLEN MFG. CO. v. WALKER et al.

No. 17836.

Appellate Court of Indiana, in Banc.

April 4, 1949

Appeal from Industrial Board.

Jones, Obenchain & Butler, of South Bend for appellant.

James E. Keating, of South Bend, for appellee.

BOWEN Judge.

This is an appeal from an award of the full Industrial Board granting appellees, the widow and minor children of one Albert J Murphy, compensation for the death of said decedent.

Error assigned for reversal is that the award of the Board is contrary to law. The sole question presented in this appeal challenges the finding and resulting award of the Board based upon the conclusion that the decedent's death arose out of and in the course of his employment.

Appellee's decedent was employed by the appellant as a supervisor and assistant foreman of the loading dock in which capacity he had charge of the unloading of freight cars and trucks. The accident in question occurred at approximately 12:50 p. m His lunch hour was from twelve noon to 1:00 p. m. He was compensated by the appellant at an hourly rate and he was not paid for the noon hour period unless he worked during the period.

The appellant company's porperty adjoined the south bank of the St. Joseph River, and there was a spillway and race for the passage of water from the company's hydro-electric plant to the river. On the east side of this spillway was a wall running north to the south bank of the river which joined a wall running east along the south bank of said river. Building No. 34 was the loading dock in which decedent was employed by the company. The distance from the nearest corner of Building No. 34 to the north end of the wall was approximately 92 feet. Such wall was not directly accessible from the loading dock because of the fact that there was no bridge across the raceway at that point.

The route from the northeast corner of Building No. 34 to the north end of the north and south wall across the accessible bridge and north to the north end of said wall was approximately 208 feet. The top of said north and south wall was three feet above the average ground level lying immediately east thereof, and twelve feet above the water level of the spillway lying immediately west thereof. This wall was from 18 to 24 inches wide and was brick with a concrete top or facing. The decedent during his lunch hour went out on to the north and south wall and was fishing on the point where the wall joins the east and west wall on the south bank of the river. He was using a fishing line wrapped around his hand with an artificial plug. While fishing, he stood erect and started swaying his fishing line and the plug and threw it in with a swinging movement of his body. One witness who was also fishing on the wall testified that the decedent swung around the post at the corner where the north and east walls joined. At that time he had his fishing line wrapped around his right hand. He had to go on the outside of the post because the rest of his line and his artificial bait were in the water. This witness did not see him after he swung around the post and the last time he saw him he was dragging his line and bait through the water. Shortly thereafter, this witness heard a big splash and saw that Murphy had fallen into the water. There were no eye-witnesses to the accident. Another witness, one Roy Hobbs who was also fishing, testified that the last he saw the decedent, he started walking south on the wall to the company's building. Hobbs had just walked north in the opposite direction. The next thing he noticed was a splash, and he turned around and saw the decedent's hat in the water. Another witness testified the last he saw of decedent he was walking on the wall toward the post.

The decedent had fallen into the water and was drowned. When his body was recovered and removed from the water his fishing line was wrapped around his waist and around his leg and his artificial plug was hooked on his pants. The accident happened on company property, and the ground immediately east of the wall was level and covered with cinders and there was nothing that day to have prevented decedent from walking along the ground immediately east of the wall to go back...