Acton v. Wymore School Dist. No. 114

• Decision Date: 27 October 1961
• Docket Number: No. 35040,35040
• Citation: 111 N.W.2d 368,172 Neb. 609
• Parties: Edna ACTON, Appellant, v. WYMORE SCHOOL DISTRICT NO. 114 and The Travelers Insurance Company, Appellees.
• Court: Nebraska Supreme Court

Page 368

111 N.W.2d 368

172 Neb. 609

Edna ACTON, Appellant, v. WYMORE SCHOOL DISTRICT NO. 114 and The Travelers Insurance Company, Appellees.

No. 35040.

Supreme Court of Nebraska.

Oct. 27, 1961.

Syllabus by the Court.

1. An injury sustained by an employee while going to and from his work does not arise out of and in the course of his employment.

2. Walking on the employer's premises to and from the street and a building where one is employed is a necessary incident of employment, and an injury sustained in so doing is compensable.

3. The word 'street' is a generic term and embraces the entire width of the public way as delineated or described on the plat. It embraces everything from property line to property line.

4. As so defined, a sidewalk in the public way is a part of the street.

5. McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456, and De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419, construed and distinguished.

McCown, Wullschleger & Baumfalk, Beatrice, for appellant.

Cline, Williams, Wright, Johnson, Oldfather & Thompson, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

SPENCER, Justice.

This is a proceeding under the Workmen's Compensation Act. The appellant, Edna Acton, hereinafter called the plaintiff, was an employee of the appellee, Wymore School District No. 114, hereinafter called the defendant. Following a hearing before a single judge of the Nebraska Workmen's Compensation Court, the action was dismissed. The plaintiff then appealed directly to the district court for Gage County, which also entered an order of dismissal. The plaintiff's motion for new trial was overruled and the plaintiff perfected her appeal to this court.

The only issue involved in this appeal is whether the injury sustained by the plaintiff arose out of and in the course of her employment by the defendant.

The undisputed evidence would indicate that on and previous to February 2, 1960, the plaintiff was employed by the defendant as a cook. On her way to work on the early morning of February 2, 1960, plaintiff slipped on an icy sidewalk bordering the school in which she was employed, broke her ankle, and incurred considerable medical expense. The sidewalk completely surrounds the school and it is not possible for anyone to enter the building or the school grounds without at some point passing over the sidewalk. Exhibit 13 establishes that the sidewalk on which the plaintiff fell is on city property, is 1.78 feet north of the defendant's property line, and is a public walk. However, the evidence is undisputed that the defendant removed all snow from the sidewalk and kept it free from obstruction. Further, the melting snow which formed the ice on which the plaintiff slipped had been pushed to the side of the sidewalk by an employee of the defendant. The defendant did not take any measures to keep ice from forming from the melting snow. The superintendent of schools testified that no one else did anything with reference to the sidewalk except the defendant or its employees. The evidence is also undisputed that the defendant paid for all repairs made to the sidewalk by the city.

The plaintiff contends that walking to and from the street and the building where one is employed is a necessary incident of employment, and an injury sustained in so doing is compensable. Plaintiff slipped on a sidewalk less than 2 feet from her employer's property, which sidewalk she contends was under the employer's control. The ice which caused her fall was formed by runoff from the employer's property, and when she slipped she fell partly on that property.

It is well established in this jurisdiction that an injury sustained by an employee while going to and from his work does not arise out of and in the course of his employment. Siedlik v. Swift & Co., 122 Neb. 99, 239 N.W. 466; Richtarik v. Bors, 142 Neb. 226, 5 N.W.2d 199, 142 A.L.R. 881; Lincoln Traction Co. v. Reason, 143 Neb. 512, 10 N.W.2d 344; Fidelity & Casualty Co. of New York v. Kennard, 162 Neb. 220, 75 N.W.2d 553.

The plaintiff contends that the present case constitutes an exception to the general rule, and relies primarily on the case of McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456, 457. In that case, the plaintiff, a county employee, slipped on a driveway leading from the courthouse to the street. This driveway was customarily used by pedestrians to enter or leave the courthouse. In that case, we quoted with approval from Kasari v. Industrial Commission, 125 Ohio St. 410, 181 N.E. 809, 82 A.L.R. 1040, as follows: "Traversing the zone between the entrance of the employer's premises and the plant where an employee is employed is one of the hazards of the employment.' A well-recognized annotator, in considering this case, states: 'By the weight of authority injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment within the workmen's compensation acts, and this rule is supported by the later cases.' 82 A.L.R. 1044.'

At page 234 of Fidelity & Casualty Co. of New York v. Kennard, 162 Neb. 220, 75 N.W.2d 553, at page 561, we said as follows: 'In McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456, this court recognized an exception to this general rule. The exception as stated in that case is to the effect that an employee, leaving the premises of the employer in the usual and customary way after the work period has ended, is within the course of the employment within the meaning of the Workmen's Compensation Act. * * *

"The reason upon which the exception is grounded is that the hazards of entering or leaving the place of employment while on the property of the employer are hazards of the employment which must be assumed by the employer. The employer is obliged to provide safe ingress and egress to and from the place of employment for employees entering or leaving its property in the performance of the work of the employment. * * * But this is on the theory that the employer has control of the premises and the employee and that the risks of entering or leaving the place of work are incidental to the employment."

The defendant, however, argues that the instant case is controlled by our holding in De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419, which was decided by this court in 1935, 3 years earlier than McDonald v. Richardson County, supra. In that case, the plaintiff fell on the sidewalk in front of her employer's premises, a few feet from the entrance, as she was leaving for her noonday lunch. Her fall was caused by ice formed by water dripping from the canopy maintained by the employer over the sidewalk. We held the injury in that case occurred on a public sidewalk which was not a part of the employer's premises, and where the employee was exposed to no other or different hazard than the general public. We there said at page 285 of 129 Neb., at page 420 of 261 N.W., quoting a portion of what is now section 48-151, R.R.S.1943: "Without otherwise affecting either the meaning or interpretation of the abridged clause, 'Personal injuries arising out of and in the course of employment,' it is hereby declared: Not to cover workmen except while engaged in, on or about the premises where their duties are being performed, or where...