Babine v. Lane Const. Corp.

• Decision Date: 05 February 1958
• Citation: 138 A.2d 625,153 Me. 339
• Parties: Rita J. BABINE, Pet'r, v. LANE CONSTRUCTION CORPORATION and Liberty Mutual Insurance Company, Respts.
• Court: Maine Supreme Court

Page 625

138 A.2d 625

153 Me. 339

Rita J. BABINE, Pet'r, v. LANE CONSTRUCTION CORPORATION and Liberty Mutual Insurance

Company, Respts.

Supreme Judicial Court of Maine.

Feb. 5, 1958.

Berman, Berman & Wernick, Portland (Edward J. Berman and John J. Flaherty, Portland, of counsel), for petitioner.

Forrest E. Richardson, Portland, for respondents.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, SULLIVAN and DUBORD, JJ.

WEBBER, Justice.

Louis C. Babine, deceased husband of the petitioner, lost his life in an accident while employed by Lane Construction Corporation on August 20, 1955. There is no material dispute as to the essential facts which were fully found by the Industrial Accident Commission. Babine's employer was under contract with the Maine Turnpike Authority to place the 'final top' on the turnpike including the traveled portion and shoulders in the area extending from the South Portland exit northerly to the Androscoggin River in Auburn. As is well known, the new turnpike is designed to be a divided, limited access, toll highway running from Kittery to Augusta. On the day of this accident the contractor's work was by no means completed. Work of various types was in progress in areas in the section covered by the contract. The pavement was in varying stages of completion and work was being done on the shoulders in some places. Sections of both the north bound and south bound lanes were closed to the movement of vehicles. The turnpike had not been open to public travel and, although some members of the public were undoubtedly driving vehicles over the area at times, it is fair to assume from the undisputed evidence that most, if not all, of them were there without invitation or license. Several other contractors were engaged in other phases of the construction at the same time and in the same areas.

On the evening before the accident, Mr. Babine, a roller operator, had left his roller at a point on the turnpike where he had ceased operations at the close of the work day. His work schedule called for his resumption of work at the same place at 7 a. m. on the day he was killed. He was temporarily residing at a hotel in Lewiston. On the day of the accident he was awakened by the desk clerk about 5 a. m. A short time later he appeared wearing clothes suitable for work. He had breakfast with a fellow employee, after which both set off in their own cars. At about 6:40 a. m. the Babine car was observed entering the turnpike area from the public highway known as Route 122 in Auburn. The turnpike at this point was within the section being constructed by the employer. Mr. Babine then proceeded about half a mile in the south bound lane and in a southerly direction, the north bound lane then being closed to the movement of vehicles. At this point the fatal accident occurred. The automobile was then traveling toward the site of Mr. Babine's own work assignment some sixteen miles away. From this evidence the Commission concluded and found as a fact that the deceased was then on his way to work. We do not understand that respondents now press their contention that this was a finding of fact without supporting evidence, but in any event we think the inference is entirely reasonable and we doubt that any other could properly be drawn from the circumstances.

The morning was foggy and the visibility poor. Near the scene of the accident the hard top had not been placed on the surface of the road and work was in progress on the shoulders. A stone spreader was parked on the south bound lane, partly on the roadway and partly on the shoulder. Mr. Babine, traveling at about 40 to 45 miles per hour, pulled to the left to pass the stone spreader and then, failing promptly to turn back to the right, collided with a truck owned by the respondent contractor and proceeding at about 40 miles per hour in the opposite direction. Mr. Babine was instantly killed.

It is true that the deceased need not have entered the turnpike area where he did in order to get to the place where his work called him. There was a public highway available from which he could have entered the area at any one of several points. Without doubt he chose the course for his own convenience. Nevertheless he had traveled the area frequently in the past as had other employees. There was no company rule or order in effect prohibiting employees from traveling the area going to and coming from work even though the company was aware that employees were using the turnpike for that purpose. Each employee furnished his own transportation to the point where his work was to be performed and therefore it was necessary for him to travel for some distance over the turnpike area even though that distance might be short.

Upon this evidence the Commission found that the accident occurred 'in the course of' and 'arose out of' the employment. No case yet decided in Maine determines the issues here presented.

The requirement that the accident to be compensable must have occurred 'in the course of' the employment relates of course to time, place and circumstances. 'An accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.' Fournier's Case, 120 Me. 236, 240, 113 A. 270, 272, 23 A.L.R. 1156. That case clearly indicated that one who is in a forbidden place or on a forbidden route is not in a place where he may reasonably be and his accident is therefore not 'in the course of' employment. It is therefore significant that in the case at bar the employer had not issued orders or promulgated rules prohibiting employees from using the turnpike area as a route to and from the place of work. Apart from such prohibitions, the employee ordinarily enjoys the protection of the Act while going to and coming from the location of his work assignment and while on the employer's premises. In Roberts' Case, 124 Me. 129 at page 131, 126 A. 573 at page 574, the Court stated that "the course of his employment' does not begin and end with the actual work he was employed to do, but covers the period between his entering his employer's premises a reasonable time before beginning his actual work, and his leaving the premises within a reasonable time after his day's work is done, and during the usual lunch hour, he being in any place where he may reasonably be in connection with his duties or entering or leaving the premises by any way he may reasonably select.' Roberts' case went on to extend coverage to a private way leading to the employer's premises which the employer and his employees had a right to use but over which the employer had no control, this way being the only means of access by vehicles to the employer's premises from the nearest public street.

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