Crites v. Baker

• Decision Date: 16 December 1971
• Docket Number: No. 2,No. 771A124,771A124,2
• Citation: 150 Ind.App. 271,276 N.E.2d 582
• Parties: Sam CRITES d/b/a B & C Disposal Company, Defendant-Appellant, v. Charles E. BAKER, Plaintiff-Appellee
• Court: Indiana Appellate Court

Page 582

276 N.E.2d 582

150 Ind.App. 271

Sam CRITES d/b/a B & C Disposal Company, Defendant-Appellant, v. Charles E. BAKER, Plaintiff-Appellee.

No. 771A124.

Appellate Court of Indiana, Division No. 2.

Dec. 16, 1971.

McCrea & McCrea, Robert F. McCrea, Ellen A. Lloyd, Bloomington, for appellee.

Steckbeck & Moore, David A. Steckbeck, William C. Moore, Indianapolis, for appellant.

SHARP, Judge.

The sole issue here is whether the award of the Industrial Board of the State of Indiana granting benefits to the Plaintiff-Appellee, Charles E. Baker under the Indiana Workmen's Compensation Act is contrary to law. Both the single hearing member and the full Industrial Board awarded benefits to Appellee.

It is elementary that the factual record in this case must be considered in the light most favorable to the Appellee. These facts, briefly summarized, indicate that the Appellee, Charles Baker, was an employee of the Appellant and that his duties were to drive one of the Appellant's trucks on the streets and alleys of Bloomington, Indiana. The Appellant had a contract with the City of Bloomington, Indiana to pick up trash and garbage in the City. The truck which the Appellee had been driving on the date here in question was specially designed and equipped to pick up trash and garbage. On October 11, 1969, the truck driven by the Appellee ran out of gas and came to a stop on the south side of a public street in Bloomington, Indiana, and at that time, said truck was heading in an easterly direction. The Appellee was in the driver's seat of the truck waiting for one of his co-employees to go and bring back a can of gasoline. Between 3:30 and 4:00 o'clock P.M., a school bus approached said truck from the east. At this point, the street is described as being narrow and was barely wide enough for the passage of the school bus past the garbage truck. The Appellee was looking out the open window of the cab watching the bus as it approached and passed when he was struck in the face by an apple thrown by a ten year old boy from the passing school bus. A fellow employee of the Appellee, Ringman Boltinghouse, who was standing near the truck at the time of the incident above referred to, on direct examination described the happening of the occurrence as follows:

Q. Mr. Boltinghouse, tell the Court about this accident in your own words the way you remember it?

A. Our truck had run out of gas and we had to give it a push to get up a hill and we was sitting in the seat, waiting for one of the boys to bring us gas, and so they brought us gas, but before that, the school bus was coming and Charlie had his head laying over like this against the window with his eyes closed and this boy throwed an apple out of the window of the bus. That's about all I know about it.

Q. Now, Charlie was sitting under the steering wheel of the truck?

A. Yes, sir.

Q. And was the window down on Charlie's side?

A. Yes, sir.

Q. It was open?

A. Yes.

Q. Did you see the object that hit Charlie?

A. Yes, it was an apple.

Q. Did you see it coming, Mr. Boltinghouse?

A. No. The kid throwed it too fast.'

Another witness, Charles Clemens, Sr., a cab driver who observed the accident, testified as follows:

Q. Which direction were you driving on 4th Street?

A. I was going west on 4th.

Q. Did you see a school bus, was there a school bus traveling in front of you, or do you remember?

A. Yes, there was a school bus going in front of me.

Q. The same direction you were?

A. Yes.

Q. Will you just help us by telling the Court and directing your words up there, what you saw happen?

A. It happened so--to me, let me put it in my own words, it happened so damn fast, this man fell out of his cab and I went over and helped him with my arm until the emergency wagon could come to him, and I wiped apple off of his face, that is the only thing about it, until the emergency wagon came and got him.

Q. Was he bleeding?

A. That man was bleeding from his ears, nose, eye, bleeding from his mouth. That is the way this man was.

Q. And the emergency police vehicle came and they took him away?

(Yes.)

It is elementary that this Court will not weigh the evidence and will not substitute its judgment of the factual record for that of the Industrial Board. On appeal, we must consider whether the finding of the Industrial Board rests upon a substantial factual foundation. We will reverse the award only if we find no substantial factual foundation to sustain the award of the Industrial Board. See Pollock v. Studebaker Corp., 230 Ind. 622, 105 N.E.2d 513 (1951) and Blue Ribbon Pie Kitchens, Inc. v. Long, et al., 230 Ind. 257, 103 N.E.2d 205 (1952). For a recent restatement of these principles in this Court see Woodlawn Cemetery Association v. Graham, Ind.App., 273 N.E.2d 546 (1971) and Davis v. Webster, 136 Ind.App. 286, 198 N.E.2d 883 (1964). In determining the correctness of the finding of the Industrial Board, this court must accept only the evidence most favorable to the Appellee. See Woodlawn Cemetery Association v. Graham, supra and Davis v. Webster, supra.

It has long been held in Indiana that the Workmen's Compensation Act, being remedial in nature, should be liberally construed to accomplish the humane purpose for which it was enacted and accordingly, it should be liberally construed in favor of employees and beneficiaries. Recent decisions of our Supreme Court and of this Court have re-emphasized the demand for this construction. See Prater v. Ind. Briquetting Corp., Ind., 251 N.E.2d 810 (1969) and Marshall v. Tribune Star Publishing Co., Ind., 243 N.E.2d 761 (1968), Burger Chef Systems, Inc. v. Wilson, Ind.App., 262 N.E.2d 660 (1970) and Ind. Toll Road Commission v. Bartusch, 135 Ind.App. 123, 184 N.E.2d 34 (1963). It is also well-recognized that the words 'arising out of' and 'in the course of the employment' as used in the Workmen's Compensation Act should be liberally construed to accomplish the humane purposes of the act. See Hayes v. Perry, 116 Ind.App. 590, 66 N.E.2d 73 (1946), Studebaker Corporation v. Jones, 104 Ind.App. 270, 10 N.E.2d 747 (1937) and In re Ayers, 66 Ind.App. 458, 118 N.E. 386 (1918).

Shortly after the adoption of the Workmen's Compensation Act in Indiana, this court was confronted with a factual situation involving many of the elements present in this case. In laying down certain general principles and guidelines this Court stated in In re Harraden, 66 Ind.App. 298, 118 N.E. 142 (1917) as found in 66 Ind.App. 298, 303, 118 N.E. 142, 143:

'Where the employment of the injured person requires him to be at the place where his injury is received, and he is in fact at such place in pursuance of the discharge of the duties of his employment, the risk thereby encountered is held to be incident to such employment, though the injury may have resulted from conditions produced by the weather to which persons generally in that locality were exposed. Where the duties of the employee require him to travel and visit different places in order that he may discharge the duties of his employment, his place of work is thereby enlarged or extended to include all the places to which such employee necessarily goes in discharging the duties of his employment. While the conditions produced by the weather may in a sense affect all alike in the particular vicinity, yet the fact remains that a person so employed is much more exposed to such hazards than the public generally because of the duties enjoined upon him by his employment and the place or places to which he must necessarily go in the discharge of such duties.' (citations omitted) (our emphasis)

Four years later, this Court decided a similar case in which the facts, reasoning and result have a more pointed application to this case. In Empire Health and Accident Insurance Co. v. Purcell, 76 Ind.App. 551, 561, 132 N.E. 664, 667 (1921) this Court stated:

'The law as to 'street risks' is well stated in (Matter of) Redner v. (H. C.) Faber & Son (1918), 223 N.Y. 379, 119 N.E. 842, where the court, quoting from Dennis v. White & Co., (1917) App.Cas. (Eng.) 479, said: 'If a servant in the course of his master's business has to pass along the public street, whether it be on foot or on a bicycle, or on an omnibus or car, and he sustains an accident by reason of the risk incidental to the streets, the accident arises out of as well as in the course of his employment. * * * The use of the streets by the workman merely to get to or from his work of course stands on a different footing altogether, but as soon as it is established that the work itself involves exposure to the perils of the streets the workman can recover for any injuries so occasioned.'

'It has been held that the risk of an employe being injured when using an automobile for transportation, by and when being stopped by officers of the law for speeding or other traffic violations, is a risk to be anticipated. Wold v. Chevrolet Motor Co. (1920), 147 Minn. 17, 179 N.W. 219.

'While there must be some causal relation between the employment and the injury, it is not necessary that the injury be one which ought to have been foreseen or expected, but it must be one which, after the event, may be seen to have had its origin in the nature of the employment. Mueller v. Klingman (1919) (73 Ind.App. 136), 125 N.E. (464), 469. A man who is known to be carrying money is a tempting object for criminals to attack, and is exposed to dangers and hazards not common to all who travel the streets. Nisbet v. Rayne & Burn (1910) 2 K.B. 689.

'When one so situated and employed as was appellee receives an injury by reason of the hazards and conditions surrounding him, it is ordinarily a question of fact as to whether the employment of such person was or was not a contributing proximate cause of the injury. We are of the opinion that the Industrial Board was justified in drawing the inference that appellee's injury arose out of his employment. This conclusion is supported by Ohio (Bldg. Safety Vault)...