Chicago Hardware Foundry Co. v. Indus. Comm'n, 29297.

• Decision Date: 20 March 1946
• Docket Number: No. 29297.,29297.
• Citation: 393 Ill. 294,65 N.E.2d 778
• Parties: CHICAGO HARDWARE FOUNDRY CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

393 Ill. 294

65 N.E.2d 778

CHICAGO HARDWARE FOUNDRY CO.

v.INDUSTRIAL COMMISSION et al.

No. 29297.

Supreme Court of Illinois.

March 20, 1946.

Error to Circuit Court, Lake County; Ralph J. Dady, Judge.

Proceeding under the Workmen's Compensation Act by Peter Domalik, claimant, opposed by the Chicago Hardware Foundry Company, employer. To review a judgment setting aside an award of the Industrial Commission in favor of claimant against the employer, the claimant brings error.

Judgment affirmed.

George S. McGaughey, of Waukegan, and Peregrine & Bruegger, of Chicago, for plaintiff in error.

Angerstein & Angerstein, of Chicago, and Hall & Hulse, of Waukegan (Thomas C. Angerstein, George W. Angerstein, Walter E. Hassman, Wendell H. Shanner, and Charles Wolff, all of Chicago, of counsel), for defendant in error.

FULTON, Justice.

This cause is here on writ of error allowed to review the judgment of the circuit court of Lake county setting aside an award of the Industrial Commission entered on the application of Peter Domalik, plaintiff in error, and against Chicago Hardware Foundry Co., defendant in error, on account of injuries sustained on August 30, 1942.

In his application for adjustment of claim filed with the Industrial Commission, immediately following the printed words, ‘Nature of work upon which injured was engaged at time of accident and how caused,’ was petitioner's typewritten allegation: ‘leaning over bannister reading gauges in boiler room in the course of his duties as fireman was pushed by some person unknown.’

The arbitrator entered a finding that plaintiff in error had ‘failed to prove that he sustained an accidental injury arising out of and in the course of his employment.’

Plaintiff in error filed a petition for review before the Industrial Commission, and, at the hearing thereon, no further evidence of any nature was introduced as to how the accident occurred, but the Industrial Commission reversed the finding of the arbitrator and awarded compensation to plaintiff in error on account of injuries to his left arm, for temporary total incapacity and for the permanent and complete loss of forty per cent of the use of said arm.

On certiorari proceedings the circuit court of Lake county entered an order reversing the decision of the Industrial Commission and, among other things, found that the facts are undisputed and that the sole question presented-whether on the admitted and undisputed facts the injury for which compensation is claimed arose out of the petitioner's employment-is one of law; that there is no evidence in the record to sustain the Industrial Commission's finding that petitioner's injuries arose out of his employment; that there is no evidence in the record from which it logically and justifiably can be found that petitioner's injuries resulted from or were traceable to any natural incident or risk of petitioner's employment, or that there was any causal connection between such injuries and petitioner's employment. All the issues were stipulated by the parties before the Industrial Commission, with the single exception as to whether the accidental injury for which compensation is claimed arose out of and in the course of plaintiff in error's employment. The only evidence in the record as to the occurrence of the accident and as to the attendant circumstances is the testimony of the plaintiff in error himself, from which it appears that on August 30, 1942, plaintiff in error, who was then twenty-five years of age, was in the employment of defendant in error at its plant located on Commonwealth avenue, North Chicago, Illinois. His hours of work were from four o'clock in the afternoon until twelve o'clock midnight. His duties were those of a fireman and boiler tender and his work took him all over the building. The boiler room was about 25 or 30 feet long and a little more than 15 or 20 feet wide. There were two boilers in the boiler room and a coalbin directly in front of the boilers. There were about 10 or 15 feet of space between the coalbin and the boilers. Directly in front of the right-hand boiler there was a steel stairway running up to a platform which extended across the front of both boilers. This stairway, which plaintiff in error had to use from time to time in the performance of his duties, was protected on either side by a railing, and there also was a railing along the outer or exposed side of the platform. Plaintiff in error testified that, in his opinion, the distance from the concrete floor to the top of the stairs was about 4 or 5 feet. At another point in his testimony he estimated the height from the bottom of the stairway to the platform at about 7 feet, but the slant of the stairway would make it about 10 feet from the head down to the concrete floor.

Coming from the outside there were five doors in defendant in error's plant which had to be gone through to get into the boiler room. Leaving the office, there was a storage room and from this room a door led to the outside and then from this open space a door led into the engine room. From the engine room there were two doors leading into the boiler room.

On the above date plaintiff in error had punched in at the time clock at about five minutes before four o'clock P.M. Although the day was Sunday, there were a few departments in the plant working. After punching in he went directly to the boiler room. There was no one else in the boiler room except the man whom Domalik relieved, one Stanley Kalinowski. Domalik first filled up the coal hoppers; he then pumped water into the boilers, and later at about five o'clock he went into the engine room and read the electric meters. After reading the meters, Domalik walked out from the engine room through a door which opened out onto the platform above described to read the boiler and water gauges. The platform was on the same level with the floor of the engine room. While looking at the gauges, Domalik stood at the head of the stairs with his right hand on the railing facing downstairs. About two feet behind him was the open door which led from the engine room out onto the platform. He had been standing in this position for about five minutes when he heard footsteps back of him and he was suddenly and violently pushed headfirst down the stairs, sustaining the injuries for which he later made claim for compensation. He testified, ‘All of a sudden I was pushed by someone.’ The time of the accident, as fixed by plaintiff in error, was about ten minutes past five o'clock P.M. Domalik was asked the question: ‘And you say you were pushed?’ and answered, ‘Yes;’ and later he was asked, ‘And they pushed you forward, did they?’ and he answered, ‘Certainly; they pushed me forward.’ And on his direct examination he testified: ‘I came back after pumping and started to read my boiler gauges at the time and I also watched my water gauge so that it wouldn't pump all the water out so I had looked over at the water from the reserve tank and I turned around and I didn't see anybody, and there was nothing out of the usual, and I went and took a drink of water. I didn't pay and attention to anything and all of a sudden I was pushed by someone. I didn't see anybody but I was pushed and I noticed that I was flying down the stairs on the cement down below and I hit my head and I was knocked out. I did get on my feet and I went to see if I could see anybody. I didn't see anyone at all, so I went down to the office and I told Mr. DeCelle about it.’ DeCelle was the defendant in error's production manager. Domalik further testified that he told DeCelle as follows: ‘Well, I told him someone pushed me, and I think I said, ‘I think it was the man I relieved, Stanley Kalinowski. “ Kalinowski was a cousin of Domalik's wife, and it appears Domalik had been having trouble with his wife for ten days or more previous to the date of the accident and that at the time of the accident divorce proceedings were pending against his wife and he had obtained an injunction to keep her out of his house and giving him custody of their baby, and a divorce was granted him on November 18, 1942. He also testified that his wife had made threats against him shortly before the accident and that he had told Mr. Simonson, chief engineer of the defendant in error, about Kalinowski being related to his wife and the trouble that plaintiff in error was having, and that he though Kalinowski had pushed him down the stairs. Plaintiff in error testified he had had no argument with Kalinowski about the trouble between plaintiff in error and his wife, and there is no evidence in the record that Domalik and Kalinowski had any argument over their work at the plant or any matter in regard to their employment at any time, and particularly none on the afternoon in question when Domalik punched in for work and Kalinowski left, nor is there any evidence in the record tending to show that the assault upon him was in any way related to or grew out of his employment. No definite information was ever gotten as to the identity of Domalik's assailant. There is no doubt, however, from Domalik's testimony that he thought Kalinowski was the person who pushed him down the stairs, because he answered, ‘I said I think he is the fellow that did it because he was the only man what was there.’ Kalinowski himself, on the hearing on review before the Industrial Commission, testified on behalf of Domalik that he had not pushed plaintiff in error down the stairs and that he had left the plant on that day before the injury occurred at about 4:02 o'clock.

That plaintiff in error must have been assaulted with considerable violence is shown by his testimony that when he was pushed all of a sudden by someone he ‘was flying down the stairs,’ and that from the point where he stood to the point where he landed on the concrete floor it was about ten feet, and as he ‘was flying down the stairs' he tried to get hold of himself on the fifth step, but he couldn...