Chapman v. Victory Sand & Stone Co.

• Decision Date: 14 July 1966
• Docket Number: No. 44575,44575
• Parties: Wanda J. CHAPMAN, Widow and Natural Guardian of Debra J. Chapman, Minor Dependent of John Lee Chapman, Deceased, Appellant, v. VICTORY SAND AND STONE COMPANY and Reliance Insurance Company, Appellees.
• Court: Kansas Supreme Court

Page 754

416 P.2d 754

197 Kan. 377

Wanda J. CHAPMAN, Widow and Natural Guardian of Debra J Chapman, Minor Dependent of John Lee Chapman Deceased, Appellant, v. VICTORY SAND AND STONE COMPANY and Reliance Insurance Company, Appellees.

No. 44575.

Supreme Court of Kansas.

July 14, 1966.

Syllabus by the Court

1. K.S.A. 44-508(k) is a codification of the 'going and coming' rule universally developed by courts in construing Workmen's Compensation Acts and is a legislative declaration there is no causal relation between an injury and the business which employs another, while the employee is on his way to assume his duties, or after leaving his duties, which is not proximately caused by the employer's negligence.

2. The record in a workmen's compensation case where an employee was on his way to assume the duties of his employment and met his death when struck by a train on a public railroad crossing, the proximate cause of which was not the employer's negligence, is examined, and, as more fully set forth in the opinion, it is held: The death of the employee did not arise out of and in the course of his employment and the district court did not err in applying K.S.A. 44-508(k) in denying an award of compensation.

James L. Rose, Topeka, argued the cause, and George E. McCullough, W. L. Parker, Jr., Robert B. Wareheim and Reginald LaBunker, Topeka, were with him on the briefs for appellant.

Herbert A. Marshall, Topeka, argued the cause, and Doral H. Hawks E. Gene McKinney and Wayne E. Hundley, Topeka, were with him on the briefs for appellees.

FATZER, Justice.

In this case the district court denied an award of workmen's compensation and Wanda J. Chapman, Widow and natural guardian of Debra J. Chapman, minor dependent of John Lee Chapman, the deceased workman, has appealed.

There is no dispute about the facts. The respondent, Victory Sand and Stone Company, is engaged in the business of selling river gravel, crushed rock and ready-mix concrete. Its property is located in northwest Topeka in an area between the Kansas River and the main line of the Rock Island Railroad near the Storey Street exit from I-70 Highway, and its south property line is the north property line of the railroad. Prior to the construction of I-70, the entrance to the respondent's plant was at the foot of Waite Street which was vacated when I-70 was constructed. The state highway department built an access road approximately a block long, from the Storey Street exit to the entrance of the plant for the use of the respondent, its employees and customers, which is the only means of vehicular ingress and egress to the plant. The access road was constructed on the state's right of way and crosses five east-west railroad tracks. The north, or fifth, track is a switching track with a spur leading into respondent's plant to provide shipping facilities. In going to the plant from the Storey Street exit, a vehicle would proceed easterly, turn north, and cross the railroad tracks at a 45-degree angle into respondent's paved concrete yard-in other words, after it crossed the tracks it would be in respondent's yard. When the access road was built, Rock Island constructed a new crossing of heavy planks covered with asphalt, which it maintains.

In 1961 or 1962 the respondent erected an iron gate across the access road at a point approximately twenty feet south of the railroad tracks for the purpose of protecting its property from trespassers and because it was not practical to put it north of the tracks between the railroad right of way and the entrance to the plant. In addition, the respondent placed poles on each side of the gate so vehicles could not drive around it. The gate was locked each evening and on holidays and Sundays, and was opened on workday mornings by some responsible official of the company. Employees of the respondent arriving for work early were required to wait in their automobiles for the gate to be opened. When the gate was locked there was no way for a vehicle to proceed farther on the access road or across the railroad tracks onto the respondent's property.

On the day of the decedent's accident, there were twelve truck drivers employed by the respondent who made an average of ten or twelve trips per day to and from the plant and an average of eight or ten trains passed the crossing daily. Passenger trains coming from the west travel from 60 to 70 miles per hour, and the crossing was known to be hazardous. There were no mechanical signals at the crossing to warn of on-coming trains and there were no highway stop signs; the only sign was a standard 'X' type railroad crossing sign installed by the railroad.

On the morning of April 16, 1964, John Chapman, an employee of the respondent, proceeded to work as usual in his own automobile. He drove from his home is Topeka and was to report for work at 8:00 a. m. Had he arrived at the respondent's plant, he would have parked his car, gone to the shop and either 'signed in' or would have been signed in by the shop foreman, and his pay would have started. In going to the plant, he turned off Storey Street onto the access road, the gate was open, and he drove upon the railroad crossing a few minutes before his reporting time. When he reached the middle track, a few feet from the plant entrance, his car was struck by an eastbound passenger train and he was instantly killed.

Two days after the accident occurred, respondent obtained two octagonal highway stop signs and placed one south of the crossing and east of the access road, and the other north of the crossing on the respondent's property.

Based upon the foregoing, the examiner found the decedent's accident did not arise out of and in the course of his employment, and denied compensation. The director of workmen's compensation concurred in the finding of the examiner and found that:

'* * * the claimant was injured while on property not belonging to or under the dominion or control of the respondent; that the accident occurred on a public railroad crossing over which a public road passed; that the fact that the respondent had erected a gate some distance away from the railroad tracks did not have the result of making said public road beyond the gate nor said railroad crossing the property of the respondent; that the accident occurred while claimant was on his way to work before he had entered on the premises of the respondent and that the cases cited in the examiner's findings are controlling that claimant has not sustained the burden of proving that he suffered an accidental injury arising out of and in the course of his employment * * *.'

He further found:

'* * * that the deceased's injuries and death were not the approximate cause of the respondent's negligence; that the respondent was not negligent.'

On appeal, the district court adopted the findings of the director of workmen's compensation and entered judgment denying an award of compensation.

Seeking reversal, the claimant makes two contentions: First, that the decedent met with accidental injury after he entered upon property which was under the dominion and control of the respondent. However, she concedes the respondent owned neither the access road nor the railroad crossing and maintained neither. Second, assuming, without conceding, the decedent had not entered upon the premises owned or controlled by respondent, he was subjected to a risk not shared by the public at large as a necessary incident to his employment, and the accident, which arose out of that risk, is deemed to have arisen out of and in the course of his employment, notwithstanding the fact he may not have arrived upon the premises owned or controlled by his employer. The latter test of compensability is referred to in claimant's brief as the 'proximity' or 'zone of danger' rule.

In advancing her contentions, the claimant candidly concedes Chapman was killed by a Rock Island train on its crossing while driving his own automobile upon a public highway, a few minutes prior to being engaged in any actual work connected with his employment, and that the granting or denial of compensation must be grounded upon an application of K.S.A. 44-508(k) which reads:

'The words 'arising out of and in the course of employment' as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence.'

In support of her first point, the claimant argues the respondent had taken the dominion and control over not only the railroad crossing, but the access road leading to and becoming a part of the crossing, making the road and the crossing a part of respondent's premises for purposes of applying the Workmen's Compensation Act; that neither the access road nor the railroad crossing would have been built except for the existence of the respondent's plant; that the road goes nowhere but to the respondent's property and is the only means of vehicular ingress and egress; that the respondent's plant was the sole reason the state built the access road and the railroad company constructed the crossing; that respondent took it upon itself to place a gate across the access road and it alone determined whether vehicles would be allowed to proceed upon the railroad crossing, and, further, that it built a 'shoulder' on the access road to widen a curve and it cleaned up sand spilled from its trucks at the curve. ...