Billings v. State Compensation Commissioner
| Citation | 16 S.E.2d 804,123 W.Va. 498 |
| Decision Date | 30 September 1941 |
| Docket Number | 9207. |
| Parties | BILLINGS v. STATE COMPENSATION COMMISSIONER et al. |
| Court | Supreme Court of West Virginia |
Sanders & Day, of Bluefield, for appellant.
Hillis Townsend, of Charleston, for appellee.
Turkey Gap Coal & Coke Company complains of an order of the Compensation Appeal Board affirming the Commissioner's award to W. C. Billings of a seventeen per cent permanent partial disability for the loss of two fingers and an injury to the thumb of his right hand.
The claim was resisted by the employer on the grounds that Billings was guilty of (1) wilful disobedience of safety rule No. 7, which provides, in part: "Cleaning sand pipes or sanding rails by hand while the motor or locomotive is in motion is prohibited"; and (2)
wilful misconduct under Code, 23-4-2, in getting off his motor while it was running and walking beside it while unattended for the purpose of cleaning the sand pipes. Although no reasons were given by the Commissioner in making the award, the Appeal Board based its action on the grounds that claimant was not guilty of wilful violation of rules or wilful misconduct as contemplated by the statute.
On or about June 21, 1940, claimant, an experienced motorman, was operating a supply motor in appellant's Modoc mine. While pushing five mine cars, loaded with mine props, up a slight grade on a straight track about two hundred feet within the mine, the wheels of the motor began to spin. Claimant upon discovering that the operation of the sand levers failed to release the sand to the rails, got off the motor while it was running, and, leaving it unattended, took the top from one of the sand boxes and began knocking the sand pipes with it for the purpose of opening the same. In some unknown manner his hand was caught under the wheels of the motor and the injury sustained. Claimant was alone at the time of the accident. The only light in the mine at the time and place was that carried on his cap.
Claimant went to work at Modoc mine about six o'clock on the evening of the accident. He first pulled some "clean-up" loads, and picked up four cars of rock which he dumped on the other side of the mountain. In unloading the rock he found that the sand pipes on the motor had become clogged. Next, he picked up some rails, brought them through the mine and unloaded them. He then went to the drift mouth of the Modoc mine for the purpose of loading mine props, which were located about fifty feet from the mine mouth. On the way he passed the sand house but did not put dry sand in the sand boxes. He and his helper, Clifton McKinney, then loaded five mine cars with props, and claimant, using his motor, pushed the cars into the mine where he was injured.
The motor had four sand boxes, each being 6x8x18 inches. From the bottom of each a sand pipe extended toward the rail. This pipe was about three or four inches long, the opening at the lower end thereof being seven or eight inches from the wheel. In the event the flow of sand can not be controlled by use of the levers, the sand pipes may be cleaned either by knocking them with a hammer or other hard object, or inserting a wire or stick, neither of which should be undertaken while the motor is running.
Rule No. 7 was properly adopted by the employer, approved by the Compensation Commissioner, and was posted at various conspicuous places on employer's property. In fact, the record shows that printed copies of the rules were posted at the mine tipple and each drift mouth. The poster at the Modoc mine was in a glass case at the left of the mine entrance about five feet above the ground and about fifty feet from where claimant and his helper loaded the mine props.
There is evidence to the effect that the mine foremen instructed the employees not to clean sand pipes or to sand rails by hand while motors were in motion, and that about two years prior to the time of the accident a pamphlet containing the mining laws and safety rules including rule No. 7, had been given to the employees when they came to the office for their pay. However, no one testified that claimant was ever instructed as to the rule in question or that he actually received a copy of the rules. On the contrary he testified that he never received any instruction or a copy of the printed rules, and that though he saw the poster in the glass case at the mine mouth he never took occasion to read it.
This state of facts brings us to the question of whether, under the circumstances of this case, claimant was bound by the rule as to the cleaning of sand pipes and the sanding of rails by hand. He, of course, contends that having had no actual knowledge of the rule and never having been instructed as to it, its violation is not wilful within the meaning of the statute (Code, 23-4-2). The soundness of this position depends upon what is meant by the term "wilful" as applied to the violation of a safety rule. It does not, as this Court has held, mean wantonness or an intent to do wrong. Young v. State Compensation Com'r, W.Va., 14 S.E.2d 774, 776. The public...
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