Bryant v. The Meyer Coal
| Decision Date | 05 April 1930 |
| Docket Number | 29,212 |
| Parties | GEORGE BRYANT, Appellee, v. THE MEYER COAL, ICE, STORAGE AND TRANSFER COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1930.
Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. WORKMEN'S COMPENSATION ACT--Injuries in or About Railway--Application of Statute. In R. S. 44-505, which provides, "That this act shall apply only to employment in the course of the employer's trade or business on, in or about a railway . . .," the word "railway" means a railway operated by the employer as its principal business, or one operated in connection with its business.
2. SAME--Injuries in or About Railway--Employees Within Particular Statute. Where an employer is engaged in the coal, ice and cold-storage business and sends a truck driver to a railway switch some three or four blocks distant from the place of business of the employer, which railway switch is not owned or operated by the employer, and the employee is injured while unloading coal from a car situated on such switch, held, that the injury did not occur on, in or about the factory of the employer within the meaning of the statute, and plaintiff is not entitled to recover.
A. M. Etchen, of Kansas City, for the appellant.
W. W. McCanles, of Kansas City, Mo., for the appellee.
This was an action for compensation under the former workmen's compensation law. (R. S. 44-501 et seq.) Judgment was awarded to plaintiff, and defendant appeals.
The alleged injury occurred on December 31, 1926. Plaintiff was in the employ of the defendant and was unloading coal from a Rock Island coal car which had been sidetracked on the Burlington switch at Seventh and Choctaw streets in Leavenworth, Kan. The defendant company, by whom plaintiff was employed as a driver of one of its trucks, operates a coal yard and an ice and cold-storage business. Its yard and plant were located between Third and Fourth streets on Choctaw street, about three blocks distant from the point where the plaintiff was working when he was injured. Plaintiff drove a truck from the yard of defendant to the car which was being unloaded. This car was standing on the public switch located as above noted. Neither the railroad car nor the switch track belonged to the defendant, but belonged to a railroad company. Defendant had nothing to do with the operation of the railway or the switch track connected therewith.
Plaintiff alleged that he was assisting in unloading a car of coal and in handling a large chunk of coal, weighing a couple of hundred pounds, as he estimated it, he claimed that in lifting the coal he suffered an injury in that he sprained his back, spine and spinal column so that he was totally incapacitated from December 31, 1926, until in March, 1927, and that from the time he sustained the injury he suffered and is still suffering permanent partial disability. He agreed to arbitrate, but the company refused and he then brought this suit. The matter was decided before a jury which made answers to special questions, among which were the following:
The jury further found that the plaintiff was totally incapacitated for work about three months and that partial incapacity was permanent; that his injuries were ascertainable by objective examination and that while his average wage per week before the injury was $ 28.50, he has since then been able to earn only $ 60 per month. The court awarded plaintiff judgment for $ 3,437.40.
The appellant contends that the district court should have sustained a demurrer to plaintiff's evidence and should have ordered judgment for defendant on the ground that the evidence showed that the injury received by plaintiff, if any, did not occur "on, in or about" the premises of the employer.
The appellee, on the other hand, calls attention to the statute, R. S. 44-505, containing the language, "that this act shall apply only to employment in the course of the employer's trade or business on, in or about a railway. . .," and urges that the judgment should be affirmed. He contends that inasmuch as the act does not say "its railway" or "the employer's railway" it is manifest that the judgment should be affirmed. He further contends that the railway was adopted by the defendant as a part of its premises for the doing of the work assigned to plaintiff; that by sending plaintiff to the point where he was injured the defendant extended the zone of its operations to that point. The appellee cites, among other cases in support of the judgment, the following: Tierney v. Telephone Co., 114 Kan. 706, 220 P. 190; Hoops v. Utilities Co., 116 Kan. 598, 227 P. 332; Pegg v. Postal Telegraph Co., 129 Kan. 413, 283 P. 58.
In Carter v. Uhrich, 122 Kan. 408, 252 P. 240, the Tierney and Hoops cases were discussed and the reasons pointed out plainly as to why the law was construed as it was in those cases. At page 411 the court said:
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