Cudahy Packing Co. of Nebraska v. Industrial Commission of Utah

Decision Date24 April 1922
Docket Number3778
Citation60 Utah 161,207 P. 148
CourtUtah Supreme Court
PartiesCUDAHY PACKING CO. OF NEBRASKA v. INDUSTRIAL COMMISSION OF UTAH et al

Rehearing denied May 23, 1922.

Proceedings under the Workmen's Compensation Law by the dependents of Joseph Parramore, deceased, against the Cudahy Packing Company of Nebraska, employer, to recover compensation for decedent's death. The Industrial Commission of Utah made an award, and the employer seeks annulment by writ of review.

AWARD AFFIRMED.

Booth Lee, Badger & Rich, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen. and J. Robert Robinson, Asst. Atty Gen., for commission.

F. C Loofbourow, of Salt Lake City, for dependents.

GIDEON, J. CORFMAN, C. J., and WEBER, THURMAN, and FRICK, JJ., concur.

OPINION

GIDEON, J.

The plaintiff, Cudahy Packing Company, by writ of review seeks the annulment of an award made by the Industrial Commission in favor of the dependents of Joseph Parramore, deceased. The dependents and the Industrial Commission are made defendants.

There is no dispute about the dependency of the claimants, nor of the fact of employment or wages deceased received.

The plaintiff owns and operates a packing plant in what is known as North Salt Lake, in Davis county, about six miles north from Salt Lake City. More than 40 per cent. of its employes reside in Salt Lake City. Other employes reside in Bountiful, Centerville, and other villages located farther north. Few, if any, of the employes have homes in the immediate vicinity of the packing plant. The plant is approximately one-half mile west of the Salt Lake-Ogden highway. This highway runs north and south. A county road runs west from and at right angles to the Salt Lake-Ogden highway and extends to and beyond the packing plant. A short distance from the highway the county road crosses at right angles the tracks of the Bamberger Electric Railroad. From that point west the county road is the only roadway leading to the packing plant.

The deceased was employed by the plaintiff as an engineer. His hours of work were from 7 a. m. to 4 p. m. On the morning of the accident, August 9, 1921, while riding to work with a fellow employe, he was struck by an engine on the Denver & Rio Grande Western Railroad track and instantly killed. The distance from the place of the accident to the entry to plaintiff's plant was about 100 feet. The Commission, among other things, found:

"* * * That on said date three workmen, including Mr. Parramore, all of whom lived in Salt Lake City, were traveling in an automobile owned by one of the workmen, approaching the plant where they were employed; that while crossing the main line tracks of the Denver & Rio Grande Western Railroad Company, which tracks were alongside the land upon which is located the plant of the Cudahy Packing Company, the automobile in which they were riding was struck by an engine of the railroad company and Joseph Parramore thrown against a post in the right of way fence, which fence also inclosed the property of the Cudahy Packing Company, and was instantly killed; that within half a mile of the plant of the Cudahy Packing Company, where Mr. Parramore was employed, it was necessary that Mr. Parramore pass over the main line tracks of the Bamberger Electric Railway Company and the main line tracks of the Oregon Short Line Railroad Company, and the main line tracks of the Denver & Rio Grande Western Railroad Company, and three side tracks and transfer tracks between these various lines of railroad; that the Cudahy Packing Company furnished its employes no method of travel or conveyance in coming to or leaving the plant, and most of the employes of the company lived in such localities that it was necessary that they should travel, to and from their work, the road which crossed the railroad tracks above mentioned; that the plant of the Cudahy Packing Company is dependent upon shipping facilities furnished by the railroads, and by necessity the near proximity of the railroads is essential to the successful operation of the plant; that the death of Mr. Parramore occurred about seven minutes before the time at which he was to commence work; that the Cudahy Packing Company does not furnish at its plant either board or lodging; that there are no public conveyances that could carry employes directly to the plant; that employes who went to their work by street cars or by the Bamberger Electric Railway must cross the railroad tracks above mentioned, either on foot or by private conveyance; that Mr. Parramore at the time he was killed was using the most direct and practicable route to the plant of the Cudahy Packing Company and the one ordinarily traveled by a majority of the employes, and by all the employes residing in Salt Lake City."

The findings are supported by competent evidence found in the record. It likewise appears that practically all travel over this county road is that of the employes and others going to the packing plant, or persons having business with the stockyards located just north of that plant. In certain seasons of the year sheep are herded in the western part of the country and are driven over this county road, but it is quite apparent that the way is maintained and kept in repair for the benefit of persons traveling to and from the plaintiff's plant.

Upon substantially the foregoing facts an award was made. Plaintiff assails that award. The controlling question before the Commission, and the one before this court is: Did the accident which caused the death of Parramore arise out of or in the course of the employment? It is insisted by plaintiff that the findings are not supported by the testimony; that under the admitted facts the injury is not compensable under the Workmen's Compensation Act of this state; that the relation of employer and employe did not exist at the time of the accident. The act provides for compensation to every employe whose employment is subject to the act, if injured "by accident arising out of, or in the course of his employment, wheresoever such injury has occurred." Section 3113, Comp. Laws Utah 1917, as amended by chapter 63, Laws Utah 1919.

Our Workmen's Compensation Act differs from a majority of the states, in that our statute uses the disjunctive, "or," while in most of the compensation laws the conjunctive, "and," is found. The compensation law as originally enacted in 1917 provided compensation for injuries arising out of and in the course of the employment. The act was amended in 1919 to read as above quoted. It is apparent, therefore, that the Legislature by the amendment intended to include within the statute accidents not covered by the original act.

The courts generally agree in principle respecting the elements to be considered in determining what accidents are included in the words "arising out of and in the course of the employment." The Supreme Judicial Court of Massachusetts, in Re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306, has given probably as satisfactory and comprehensive a definition of these terms as can be found in any of the cases. It is not, however, necessary or desirable in the determination of this case to attempt a definition of these terms or to differentiate between accidents arising out of or in the course of the employment. If there is liability for the injury under consideration, it must be founded upon the inferable fact that the danger incident to crossing this railroad track, by reason of its location and proximity to the packing plant, must be held to have been within the contemplation of the parties at the date of the employment. The accident would therefore both arise out of and occur in the course of employment. No other theory finds support in the decisions of the reported cases. It is admitted that deceased was not on the premises of the plaintiff at the time of the accident. He was not at that time engaged in any actual work connected with his employment. The engine that ran down the automobile was in no way under the control of the plaintiff, nor was it engaged in any work for or in plaintiff's behalf. The engine was under the control of the railroad company and was running south on the main line of that road.

The Commission also found, and it is undisputed, that the plaintiff did not control nor in any way attempt to control the method or manner of travel to or from work by any of its employes. Neither did the plaintiff furnish any means of conveyance. That was left entirely with the individual employe.

It is argued by counsel for plaintiff that the Commission's finding "that the plant of the Cudahy Packing Company is dependent upon shipping facilities furnished by the railroads, and by necessity the near proximity of the railroads is essential to the successful operation of the plant," is erroneous and is not supported by the evidence. In our judgment that finding is not controlling or of much significance. It is undoubtedly true that the successful operation of a packing plant is dependent upon railroad facilities, but that dependence is common to a large percentage of all manufacturing institutions. The proximity of a railroad is a matter of convenience to industries dependent upon shipping facilities. Such facts alone cannot determine the right of claimants to compensation. As above indicated, if plaintiff is liable for the accident, it must be upon some other ground than the mere fact of the convenience of having a railroad near its plant or of its dependence upon shipping facilities.

It was customary, in fact absolutely necessary, for employes going to the plant to work to pass over and across these railroad tracks on the public road where the accident happened. No other means or way existed by which employes could get to the...

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