Alzina Const. Co. v. Indus. Comm'n

• Decision Date: 20 October 1923
• Docket Number: No. 15403.,15403.
• Citation: 309 Ill. 395,141 N.E. 191
• Parties: ALZINA CONST. CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

309 Ill. 395

141 N.E. 191

ALZINA CONST. CO.

v.INDUSTRIAL COMMISSION et al.

No. 15403.

Supreme Court of Illinois.

Oct. 20, 1923.

Error to Circuit Court, Sangamon County; E. S. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Mary F. Kelly, claimant, opposed by the Alzina Construction Company, employer. Decision of the Industrial Commission, affirming award of arbitrator, was sustained by the circuit court, and the employer brings error.

Reversed.

Pope & Driemeyer, of East St. Louis, for plaintiff in error.

Andrus, Trutter & Crow, of Springfield, for defendant in error.

CARTER, J.

An application for adjustment of claim was filed with the Industrial Commission by Mary F. Kelly, the mother of John F. Kelly, because of his beath by lightning while in the employ of plaintiff in error at its cement house near Auburn, Ill., on June 20, 1921. After a hearing before the arbitrator, compensation was awarded, and after some additional testimony was heard by the Industrial Commission,the finding of the arbitrator was affirmed, and the latter's decision having been sustained by the circuit court, the case has been brought here by writ of error.

The time, place, and nature of the accident are admitted, and also that there was notice and claim made within the statutory period. The questions in dispute are whether the accident arose out of and in the course of the employment, and, if compensable, the amount that should be paid, and the dependency of the mother.

The plaintiff in error in the conduct of its business maintained at the place of the accident a wooden one-room cement house, about 100 feet long by 30 feet wide and 20 feet high, extending east and west and west about 30 feet from a switch track and about 50 feet from the main tracks of the Illinois Traction System, which were to the south. About 125 feet in the same direction were four or five houses, about 25 or 30 feet apart. On the switch tracks were some filled and some empty cars. On the north side of the cement house was a narrow-gauge railroad, the rails being laid on steel ties, and beyond that, in the same direction, was an open field. On the west was a tunnel and sand pit, but no buildings or trees. On the east was the office of the construction company, and there was also dwelling house in that direction, about 250 feet distant from the cement house. There were four doors on both the north and south sides of the cement building, and at least two of these doors on each side were open. Box cars of cement at the time of the accident had been brought up to the cement house, to be unloaded, and, as it had commenced to rain, sacks of cement were being wheeled into the building on trucks, which had steel wheels and braces, but wooden handles. The lightning struck Kelly just as he was finishing taking in some cement at the second door from the south end of the building. Another man, Stephen Ferns, who was inside the shed, was also struck and killed, and two other men were affected by the lightning, but there was no damage done to the building itself.

On review, Clarence Root, meteorologist in charge of the Weather Bureau at Springfield, testified as a witness, and was asked a hypothetical question purporting to embody the essential physical conditions surrounding the scene of the accident. He was asked whether or not, in his opinion, a man under those conditions,by reason of his employment at the time, was exposed to a greater risk of being injured than were the public in that community, or if his employment necessarily accentuated the natural hazard. Over objection this witness answered that, because of his work and the location of the same, he was exposed to a greater risk than others in the community, because of the isolation of the place. Further examination of the witness discloses that, while in the performance of his duties he had tabulated various reports and made a record of deaths and damage by lightning, he had not attempted to classify hazard by lightning under varying conditions; that his study had not been as to the accentuation of hazard by reason of a person's being in one place or another, but had been more particularly with reference to the number of people killed by lightning in a given time within a given area. From the witness' whole testimony the fair conclusion is that it tended to prove that a person would be exposed to about an equal risk of being struck by lightning in any one of a number of buildings near together, except that a higher building would have a greater exposure and risk. In the last analysis the witness concluded the line was to be drawn between populated communities and rural communities, and between collected buildings and isolated structures; that there was no greater hazard at the cement house than at a house standing alone. The witness did not think the steel tracks and ties and the use of steel at the cement house created any additional risk.

While the laws of the different states vary as to accidents caused by the action of the elements, the same general principles and the same general tests should be applied to such accidents in this as in other jurisdictions. It is the general rule that the circumstances in a particular vocation, in order for an employee to claim the benefits of the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-152i), must be appreciably and substantially beyond the ordinary risk, so that there is extra danger to which employees in ordinary occupations or places of employment are not subject; that the decision of such a question cannot depend upon inference arrived at by conjecture or speculation; that the burden of proof is upon the applicant to show that the position of the injured person was more hazardous than that of others in the same community, or that by reason of the employment the risk was greater. Central Illinois Service Co. v. Industrial Com., 291 Ill. 256, 126 N. E. 144, 13 A. L. R. 967;City of Joliet v. Industrial Com., 291 Ill. 555, 126 N. E. 618.

Whether a death caused by lightning should be compensated for would therefore depend upon the circumstances. There are numerous cases where the action of the elements was the direct cause of death, such as tornadoes, lightning, and sunstroke, and while these are risks common to all persons, in a general sense the circumstances of a particular employment may ‘make the risk, not the general risk, but the risk sufficiently exceptional to justify its being held that an accident from such risk was an accident arising out of the employment.’ Central Illinois Service Co. v. Industrial Com., supr...