Chicago & West Towns Rys., Inc. v. Indus. Comm'n

• Decision Date: 17 November 1942
• Docket Number: No. 26716.,26716.
• Citation: 45 N.E.2d 285,381 Ill. 257
• Court: Illinois Supreme Court
• Parties: CHICAGO & WEST TOWNS RYS., Inc., v. INDUSTRIAL COMMISSION et al.

381 Ill. 257

45 N.E.2d 285

CHICAGO & WEST TOWNS RYS., Inc.,

v.INDUSTRIAL COMMISSION et al.

No. 26716.

Supreme Court of Illinois.

Nov. 17, 1942.

Error to Circuit Court, Cook County; John Prystalski, Judge.

Proceeding under the Workmen's Compensation Law by Anna Nallon, claimant, opposed by Chicago & West Towns Railways, Inc., employer, for the death of an employee. To review a judgment of the Circuit Court confirming on certiorari a decision of the Industrial Commission sustaining an award of compensation, the employer brings error.

Affirmed.Berthold L. Goldberg, of Chicago (Irwin S. Baskes, of Chicago, of counsel), for plaintiff in error.

Kelly & Cohler, of Chicago, for defendants in error.

SMITH, Justice.

This case is here on writ of error granted by this court to review the judgment of the circuit court of Cook county. Upon a hearing the arbitrator made an award in favor of defendant in error and against plaintiff in error, in the sum of $16.50 per week for a period of 242 weeks, and $7 for one week. On appeal to the Industrial Commission, the award was sustained. The circuit court of Cook county, on certiorari, confirmed the decision of the commission.

The sole question presented here is whether, as a matter of law, the evidence is sufficient to sustain the award. It is contended by plaintiff in error that the facts are not in controversy, and that the question of the sufficiency of the evidence to sustain the award is purely a question of law. This contention, however, is disputed by defendant in error. She contends that the award of the commission is based on the disputed question of fact as to whether the deceased, at the time he was injured, was engaged in an activity which was incidental to his employment; that the decision of this question necessitated the determination by the commission of the weight of the evidence and, consequently, that the issue before the court is whether the decision of the commission is against the manifest weight of the evidence. An examination of the record discloses that the contention of plaintiff in error that the facts are not in controversy is based upon plaintiff in error's construction of the facts shown by the evidence.

The rule is well settled that where the facts are not in controversy, the question presented is one of law as to whether the uncontroverted facts are sufficient to support the award. Farley v. Industrial Comm., 378 Ill. 234, 37 N.E.2d 787;Northwestern Yeast Co. v. Industrial Comm., 378 Ill. 195, 37 N.E.2d 806. The rule is equally well settled that where the factual situation is such as to require a consideration of the weight of the evidence or the construction to be placed upon it, this is a question of fact. In such cases, the issue presented is whether the decision of the commission is against the manifest weight of the evidence. Primarily this is a question of fact, and only becomes a question of law when there is no dispute as to the facts and when the case is to be determined upon direct evidence and not upon the weight and probative force of circumstantial evidence. It has been repeatedly held that circumstantial evidence in cases of this kind is legitimate and proper. Banner Tailoring Co. v. Industrial Comm., 354 Ill. 513, 188 N.E. 548;Vulcan Detinning Co. v. Industrial Comm., 295 Ill. 141, 128 N.E. 917;Sparks Milling Co. v. Industrial Comm., 293 Ill. 350, 127 N.E. 737; Northwestern Yeast Co. v. Industrial Comm., supra.

There is substantial agreement by counsel that the decisive question is whether the accident, which resulted in the death of the deceased, was one arising out of and in the course of his employment by plaintiff in error. This issue makes it necessary to set out at some length the facts shown by the evidence.

It is admitted in the record that the deceased was employed by plaintiff in error; that they were both operating under, and subject to, the provisions of the Workmen's Compensation Act; that the deceased, on February 20, 1940, sustained an accidental injury which resulted in his death. The disputed question is whether that accident arose out of and in the course of his employment.

Plaintiff in error is a public utility operating street cars and motor busses in and through certain municipalities located west of the city of Chicago. On the day of the accident, and for some years prior thereto, the deceased was employed as a conductor on what is known as the La Grange line. On that day, his day's work commenced at 3:16 P. M. His run was known as run No. 10, which is designated in the record as a ‘swing run.’ He relieved another conductor at that time and took over the car at the northeast corner of the intersection of Harlem avenue and Twenty-second street. At that point, he boarded a west-bound car, which was already in operation, for the purpose of relieving another conductor. At 6:15 P. M. he was relieved from actual work until 7:20 P. M. This relief period evidently was for the purpose of enabling him to obtain his lunch. During the relief period, he was not subject to the orders of his employer and rendered no services to the company. During this period he was supposed to eat his lunch and be prepared to take his next car, at the same point, at 7:20 P. M.

Immediately west of Harlem avenue and north of Twenty-second street, was located plaintiff in error's power house or substation. To the north of the power house or substation, was some vacant ground. Near the south side of this vacant space, a street car track enters from Harlem avenue, from a northeasterly direction, running practically along the north side of the power house. At a point slightly north of the center of this vacant ground, a car track also entered from Harlem avenue, from the southeast. From that part of this track, located on the property of plaintiff in error north of the power house, eight street car tracks branched off extending practically due north into the car barn of plaintiff in error. Cars were kept in the car barn when not in use. All cars started their runs from the car barn to which they were returned at the end of the day. The premises of plaintiff in error, beginning with the power house at the northwest corner of the intersection of Harlem avenue with Twenty-second street, extended north between 600 and 700 feet, with the car barn at the extreme north. The car barn was a large building. Extending from the northeast corner of the power house to the southeast corner of the car barn, along the east side of plaintiff in error's property, was a high board fence. There were three openings in this board fence, two where the street car tracks entered, each about 20 to 30 feet in width. These openings were used to enable the street cars to get into the property and car barn of plaintiff in error. At the north end of the fence, and immediately south of the car barn, there was a third opening which was some five or six feet in width. Just inside this opening in the fence was located a door entering the car barn from the south. This was the employees' entrance. The east line of plaintiff in error's property on which the fence was located, and the east line of the power house and car barn was about three feet west of the west curb line of the pavement on Harlem avenue. The vacant space between the curb line of the street and the fence...