Bergeron v. Kilnic Co.

• Citation: 274 A.2d 753,108 R.I. 313
• Decision Date: 19 March 1971
• Docket Number: No. 1121-A,1121-A
• Parties: Yvonne BERGERON v. KILNIC COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 753

274 A.2d 753

108 R.I. 313

Yvonne BERGERON v. KILNIC COMPANY.

No. 1121-Appeal.

Supreme Court of Rhode Island.

March 19, 1971.

Gunning & LaFazia, V. James Santaniello, Jr., Providence, for petitioner.

Keenan, Rice, Dolan & Reardon, H. Eliot Rice, Providence, for respondent.

OPINION

ROBERTS, Chief Justice.

This is an employee's original petition for compensation under the Workmen's Compensation Act. The petition was heard by a trial commissioner, who found 'That the petitioner has failed to prove by a fair preponderance of the reasonable evidence that she sustained any injuries on July 14, 1969, arising out of and in the course of her employment with the respondent, connected therewith and referable thereto.' He then denied and dismissed the petition. The petitioner appealed from this decree to the full commission, which on June 15, 1970, entered a final decree in which it affirmed the findings of fact and orders contained in the decree entered by the trial commissioner on April 28, 1970. From that decree the petitioner has appealed to this court.

It is not disputed that petitioner had been employed by respondent for about eight years. On July 14, 1969, petitioner, following her usual custom, punched out her card and left the premises where she performed her work to go across the street to her home for lunch. Neither is it disputed that the employer was a tenant of the second floor of a building in Woonsocket where it conducted a business. It is not contradicted that the only place of ingress to and egress from respondent's premises for the use of its employees was a staircase descending from the second floor to the first, where it opened on to a platform used for deliveries and access to the building. This platform is a few feet wide and several feet long, from the end of which several steps descend to a driveway which extends along the side of the building. The petitioner testified without contradiction that it had been a long-continued practice to make use of this route to leave the premises where she was employed and that her employer knew of and consented to such use of the stairway, the platform, and the driveway in coming to work and going from work. There is, however, no evidence in the record as to the extent of respondent's control over the driveway, if any.

It further appears that on that day petitioner, along with two other employees, had descended from the platform and was walking along the driveway beside the building. This driveway extends for several feet and debouches into Avenue C, a public highway in Woonsocket. When petitioner had taken several steps into the driveway, she slipped and fell and claims to have injured her back to spine.

It is clear, then, that the uncontradicted and unimpeached testimony discloses that there was but one route for entering or leaving the employer's premises. This was to use the stairway, the platform and the driveway alongside the building to reach the public highway. She further testified that after she fell she went home and, despite her intense pain, reported back to work at 12:30 p.m. However, at about 1:45 p.m. the pain in her back compelled her to leave her work.

By virtue of statute the finding of the commission is, in the absence of fraud, conclusive upon the Supreme Court, if in the record there is any competent legal evidence from which such finding could properly be made. McDonald v. John J. Orr & Son, Inc., 94 R.I. 428, 181 A.2d 241; Jacob v. Moshassuck Transportation Co., 84 R.I. 514, 125 A.2d 184. However, in the instant case the evidence is uncontradicted and unimpeached and, as indicated in Corry v. Commissioned Officers' Mess (Open), 78 R.I. 264, 81 A.2d 869, we are not here dealing with a finding of fact but with the legal effect of uncontradicted and unimpeached evidence not inherently improbable as to whether petitioner's injury arose out of and in the course of employment within the meaning of the statute. Boullier v. Samsan Co., 100 R.I. 676, 219 A.2d 133.

This is not a case where the employee sustained her injury on a public way while going from her employment. The factual situation presented here is undisputed. The employee, going to lunch, left the premises of her employer, using a route to reach a public way that has been customarily followed by her and other employees for a period of at least seven years, which fact was known to her employer. She slipped and was injured in the driveway between the platform and the street. The query is, then, whether as a matter of law the employee sustained an injury in the course of her employment in the factual situation. See Lima v. William H. Haskell Mfg. Co., 100 R.I. 312, 215 A.2d 229. Such a case is to be treated like cases where the injury occurs on a public way. ...