Booker v. State Comp. Comm'r., (No. 7591)

• Decision Date: 16 May 1933
• Docket Number: (No. 7591)
• Court: West Virginia Supreme Court
• Parties: Cecil Booker v. State Compensation Commissioner et al.

113 W.Va. 657

Cecil Booker

v.State Compensation Commissioner et al.

(No. 7591)

Supreme Court of Appeals of West Virginia.

Submitted May 9, 1933.

Decided May 16, 1933.

Master and Servant

Ordinarily an act of an employee reasonably necessary to bis health and comfort in the performance of his work is within the scope of his employment.

Litz, Judge, absent.

Proceedings under the Workmen's Compensation Act by Cecil Booker, opposed by the Newdyn Coal Company, employer. Prom an order of the State Compensation Commissioner denying compensation, the employee appeals.

Reversed and remanded.

Hnbard & Bacon, for appellant.

Homer A. Holt, Attorney General, and Kenneth E. Hires, Assistant Attorney General, for respondents.

Maxwell, President:

Claimant obtained an appeal from an order of the compensation commissioner refusing him compensation on the ground that his injury was not received in the course of and resulting from his employment as a coal loader in a mine of the Newlyn Coal Company.

About 2:30 p. m., March 18, 1931, an electric motor ran over claimant's left leg necessitating amputation six inches below the knee. A few minutes before he was injured he fired a shot of powder to break the face of the seam where he was working. He walked about forty feet to the entrance of his room to wait until the smoke and fumes generated by the shot should settle. This action was necessary because of the absence of ventilating fans in the mine.

While claimant was waiting near the junction of the main track, which traversed the haulway or main entry of the mine, and the side track which entered his room, a motor approached pushing two empty cars. The motorman, at the rear, and the brakeman, riding the front of the foremost car, each had a lamp burning on his cap. The motor was running in reverse. A light on the motor reflected to the rear. The motor slowed down as it neared the switch leading into claimant's room, and the brakeman jumped off the car and threw the switch, thereby turning the cars onto the side track. The motorman testified that the motor also entered the side track, but this was denied by the brakeman. After the cars had been placed, the brakeman again threw the switch and the motorman continued up the track with the motor for about twenty feet (according to the estimate of several witnesses) where it ran over claimant's leg.

Claimant admitted that he heard the motor at the switch and saw the brakeman's light, but made no effort to get out of the way of the motor because he thought it would enter his room, as he said was the custom, before continuing up the track. He contends, however, that the motor merely "kicked" the cars into his room without entering the side track; that at the point where the accident occurred the slate and other refuse had been placed so close to the side of the track that he was unable to get out of the way of the motor; that he saw no lights on the motor and did not know it had passed the switch until it struck him. The superintendent of the coal company stated that the mine had been inspected and approved by a mining inspector about thirty days before the accident, and denied the existence of an obstruction on the side of the track where claimant was injured.

On June 17th following, claimant told an inspector of the department making an ex-parte investigation...