Consumers' Co. v. Indus. Comm'n

• Decision Date: 23 December 1926
• Docket Number: No. 16526.,16526.
• Parties: CONSUMERS' CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

324 Ill. 152

154 N.E. 423

CONSUMERS' CO.

v.INDUSTRIAL COMMISSION et al.

No. 16526.

Supreme Court of Illinois.

Dec. 23, 1926.

Error to Circiut Court, Cook County; Harry M. Fisher, Judge.

Proceeding under the Workmen's Compensation Act for injury by Frank Hill, claimant, opposed by the Consumers' Company, employer. To review a judgment of circuit court approving an award of the Industrial Commission, the employer brings error.

Reversed, and award set aside.

Dunn, Duncan, and Thompson, JJ., dissenting.

McKinley & Schmauch, of Chicago (W. W. Schmauch, of Chicago, of counsel), for plaintiff in error.

Harold J. Clark, of Chicago, for defendants in error.

DE YOUNG, J.

Frank Hill filed with the Industrial Commission an application for the adjustment of his claim for compensation against the Consumers' Company. He charged that on December 18, 1922, he suffered injuries through frostbite while engaged in shoveling coal. On the hearing before the arbitrator it was stipulated that Hill was at the time an employee of the Consumers' Company; that both parties were under the Workmen's Compensation Act (Smith-Hurd Rev. St. 1925, c. 48, §§ 138-172); and that the employer was notified of the accident; and that demand for compensation was made within the time prescribed by the act. The arbitrator awarded Hill $12 per week for 15 1/2 weeks, the period of temporary total incapacity, and a like sum each week for 57 1/2 weeks under paragraph (e) of section 8 of the act (Smith-Hurd Rev. St. 1925, c. 48, § 145). The award was approved by the Industrial Commission, and its decision was affirmed by the circuit court. On a petition by the company this court granted a writ of error, and the cause is here for review.

At times during a number of years, both winten and sumer, Hill had been employed by the Consumers' Company to shovel coal in its yards in Evanston. On the morning of December 18, 1922, he sought employment at yard No. 17, located on Howard street, in that city. This yard is inclosed on one side by a cement retaining wall 15 or 16 feet high, and on the other sides by a board fence and a brick wall, 6 and 15 feet high, respectively. A trestled switch track extends into the yard, and coal bins are built under it which reach from the ground to the elevation of the track. A barn partly one story and in part two stories in height, and about 30 feet long from north to south, is located in the west part of the yard. There is also a shanty, which is heated, and in which the employees keep their coats, eat their lunches, and in cold weather warm themselves. Hill was put to work at 7 o'clock in the morning of the day in question, assisting other men in shoveling coal from one of the bins under the switch track trestle to a conveyor, which was operated by electricity, and which carried the coal into delivery trucks or wagons. The process required Hill to raise the coal a few feet from the ground with an ordinary shovel, and to deposit it on the conveyor. After one truck or wagon was loaded, it would be removed, and another would follow. Six men, including Hill and the yard foreman, were engaged in this work. On that day the temperature at 7 a. m. was one degree below zero and an hour later it was a degree lower. Thereafter it became warmer, and at noon the temperature was 8 and at 6 p. m. 12, degrees above zero.

In doing his work Hill wore a pair of unlined leather gloves. He testified that his hands became cold shortly after he began shoveling coal; that he informed the foreman about 11:30 a. m. that he had frozen his hands; that the foreman told him not to put them near the hear, but to wash them in the snow; that, after doing so he warmed his hands, so that he could remove his gloves; that he returned to work, and rested an hour at noon, when he noticed that his hands were becoming weak and numb; that he continued to shovel coal in the afternoon; them for their coats, tools, and to eat their lunches, but that he did not know that the men occupied them to warm themselves; that lunches, but that he did not know that the men occupied them to warm themselves; that he did not see any of the men go into the shanty on the day his hands were frozen, except at noon, and that the foreman told him he had better not go into the shanty if he wanted his job. On cross-examination Hill admitted that this remark was not addressed to him, but to an employee named Smith, and that the foreman said nothing whatever to him about going into the shanty. Hill ceased to work for plaintiff in error on the evening of the same day. He further testified that there was a swelling in his hands; that a part of the third finger of his right hand above the base of the nail was removed; that the second, third, and fourth fingers of each hand were stiff to some extent, and that he could not use a shovel because he could grip it only with the thumb and two fingers.

On the part of plaintiff in error the foreman testified that the shanty was for the use of all the men in the yard; that they went in and out of it on the day in question; and that he saw two men leave it between 10 and 11 o'clock that forenoon. He denied that he told Hill he had better not go into the shanty if he wanted his job. He testified that, when Hill came to him in the morning, he gave him a shovel, and put him to work; that all he said to him during the whole day was to direct him to assist in moving the conveyor; and that he did not learn that Hill had frozen his hands until two days afterwards.

Ross Smith, who shoveled coal with Hill, testified that he heard him say in the morning that his hands were cold; that he and other men, including Hill, went to the shanty about 8 o'clock to warm themselves, and that they went there three times more during the forenoon, and that Hill accompanied them each time; that Hill continued to work, wearing a pair of unlined leather gloves; that, when he was loading the first truck, he tried to pull the gloves off, but could not do so; and that, as soon as that truck was loaded, Hill went to the shanty; and that, because of the rise in temperature no one was compelled to seek its shelter during the afternoon to warm himself. It appears that Hill was the only employee of plaintiff in error whose hands were frozen.

[1][2] The question in dispute is whether the injuries suffered by defendant in error arose out of his employment. Injuries resulting from exposure to weather conditions, such as heat, cold, ice, snow, or lightning, are generally classed as risks to which the general public is exposed, and not within the although the injured person, at the time he although the injured person, at the time he received his injury, may have been performing duties incident to, and in the course of, his employment. The rule is generally recognized, however, that, if an employee, because of his duties, is exposed to a special or peculiar danger from the elements-a danger that is greater than that to which other persons in the community are subjected-and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment within the meaning of Workmen's Compensation Acts. If the character of the employment is such as to intensify the risks that arise from extraordinary natural causes, an accident under such circumstances is one arising out of the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent...