American Coal Mining Co. v. Crenshaw

• Decision Date: 23 December 1921
• Docket Number: No. 11069.,11069.
• Citation: 133 N.E. 394,77 Ind.App. 644
• Parties: AMERICAN COAL MINING CO. v. CRENSHAW et al.
• Court: Indiana Appellate Court

77 Ind.App. 644

133 N.E. 394

AMERICAN COAL MINING CO.

v.CRENSHAW et al.

No. 11069.^*

Appellate Court of Indiana, Division No. 2.

Dec. 23, 1921.

Appeal from Industrial Board.

Proceeding for compensation under Workmen's Compensation Act for the death of Curtis Crenshaw, employee, by Edna Crenshaw and others, claimants, opposed by the American Coal Mining Company, employer. From an award of compensation, the employer appeals. Affirmed.

Hays & Hays, Alonzo C. Owens, W. Paul Stratton, John S. Taylor, and G. W. Buff, all of Sullivan, for appellant.

John A. Riddle, of Vincennes, for appellees.

NICHOLS, J.

This was a proceeding before the Industrial Board by appellees against appellant for compensation. It is alleged in the application for such compensation that one Curtis Crenshaw, of whom appellees were dependents, died May 4, 1920, from personal injury received by him in an accident arising out of and in course of his employment with appellant. The Industrial Board, after hearing the evidence, found that the deceased received the injury which resulted in his death while in due course of his employment, and rendered its award in favor of appellees accordingly, from which award appellant prosecutes this appeal.

It is the contention of appellant that the injury of the deceased did not arise in the course and out of his employment by appellant, and that therefore it is not liable. It appears by the evidence, which is substantially undisputed, that on May 4, 1920, the deceased was working for appellant, and that he had worked during the regular hours that day. He began work at 7 o'clock in the morning, and quit work at 3 o'clock in the afternoon. He was a machine man. There was operated from appellant's mine to the city of Bicknell, Ind., a train which was operated under a written contract between appellant and the Vandalia Railroad Company, the substance of which contract, so far as we need to consider, was that, whereas appellant had requested the railroad company to furnish it special facilities for getting miners living in the city of Bicknell and the immediate vicinity, and employed by appellant, to and from its mine, and said railroad company was not a common carrier of passengers for hire over the branch of road to be used, and did not operate any passenger trains thereon, but was willing as a private carrier, and not otherwise, to furnish appellant with facilities desired by it for getting its miners to and from the mine. The parties to said contract entered into an agreement to the effect that the railroad company as a private carrier, and not otherwise, agreed to furnish appellant a sufficient number of cars and engine and train crew, and to operate the same between said city of Bicknell and the coal mine, the cars to be used by appellant for the sole purpose of carrying its miners between said city and its mine. The railroad company agreed to furnish appellant a sufficient number of cars to carry its miners each day, taking them to the mine from the city in the morning, and returning with them in the afternoon of each working day. Appellant agreed to pay the railroad company $250 per month, with a provision that if the number of persons carried exceeded 250 the coal company should pay an additional $1 for each person so handled in excess of 250, and with a provision that there should be no deduction for any cause from the payment of $250 per month. On this train many of the employees of appellant rode to their work in the morning, and rode from the mine to Bicknell in the evening. There was a written agreement with each miner riding upon the train in which it was stipulated that in order to obtain the benefit of being carried on such train which appellant proposed should be run for the joint accommodation of appellant and the men employed at the mine, the contracting miner agreed to pay $1 per month toward the expense of running the train, the same to be retained by appellant. A certificate was furnished to each miner who executed this agreement, giving him the right to ride upon such train between the city of Bicknell and appellant's mine. The distance from the city to the mine was about four miles. It appears that the Commercial Club of the city of Bicknell in the early history of the operation of the train, paid the deficit which appellant had obligated itself to pay, but later such deficit was paid by appellant. Later, the railroad company required a guaranty of $500 per month, but there was no new contract written. At the time of the injury of the decedent the miners were each paying $1.25 per month to ride on the train. The train was operated under the direction of the railroad and by its employees. Appellant claimed no control over the deceased before 7 o'clock in the morning or after 3 o'clock in the afternoon, and it was optional with him as to whether or not he rode on the train. He was not in any manner limited by appellant as to how he should come to his work and how he should return home therefrom. All of the employees did not ride on the train, some of them walked and some came in automobiles. On the afternoon of May 4, 1920, as the train was crossing Main street in the city of Bicknell, the deceased while riding thereon in going home from his work, and in attempting to alight, was injured, and died as a result of such injuries.

Appellant contends that an injury under such circumstances as these did not arise in the due course of and out of the employment of the deceased. The question here presented has not been decided by this court, but similar questions have been given judicial consideration in other jurisdictions, both American and English, in construing like provisions of the Workmen's Compensation Act. Laws 1915, c. 106.

In Cremins v. Guest, 1 B. W. C. C. 160, a mining company by agreement with the Great Western Railway Company and the Rhymney Railway Company ran a train on their line each morning and evening for the accommodation of their own workmen. The train ran between Dowlais and Bedlinog, close to which place the mine was situated, and it was an implied term of the contract of service between the workmen and the employers that the train should be provided by the employers, and that the workmen should be entitled to travel by it to and from their work without charge. There was no obligation to use the train. A workman at the Bedlinog station, who intended to travel home by the train, was, during a rush of workmen to enter the train, pushed off the platform and killed. It was held that the relationship of master and servant existed at the time of the accident, and that the widow as a dependent was entitled to recover.

In Davies v. Rhymney Iron Co., 2 B. W. C. C. 22, a colliery company provided a train on their railway to take the workmen from the colliery to their homes. A collier on reaching the point nearest his home, three-quarters of a mile from the colliery, met with an accident. It was held that the accident arose out of and in the course of the employment.

In Mole v. Wadsworth, 6 B. W. C. C. 129, a workman, whose only method of...