Dolan v. Indus. Comm'n
| Decision Date | 11 March 1943 |
| Docket Number | No. 26938.,26938. |
| Citation | 382 Ill. 177,46 N.E.2d 925 |
| Court | Illinois Supreme Court |
| Parties | PAYNE & DOLAN v. INDUSTRIAL COMMISSION et al. |
OPINION TEXT STARTS HERE
Error to Circuit Court, Cook County; John Prystalski, Judge.
Proceeding under the Workmen's Compensation Act by A. C. Jorsch, employee, opposed by Payne & Dolan, employer. The Industrial Commission denied compensation. On death of employee while case was pending in circuit court on certiorari, Della Jorsch, as administratrix, was made a party in place of the employee. To review judgment confirming in part the Industrial Commission's award, the employer brings error.
Judgment reversed and award set aside.Angerstein & Angerstein and Daily & Price, all of Chicago (Thomas C. Angerstein, George W. Angerstein, William L. Daily, H. T. Price, and Wendell H. Shanner, all of Chicago, of counsel), for plaintiff in error.
Peregrine & Bruegger, Petit, Olin & Overmyer, and George Kelly, all of Chicago, for defendant in error.
This cause is here on writ of error granted to review the judgment of the circuit court of Cook county confirming, in part, an award entered by the Industrial Commission to one A. C. Jorsch, for total and permanent disability and for hospital, medical and surgical care. Jorsch died while the cause was pending in the circuit court on certiorari and his widow, Della Jorsch, as administratrix, defendant in error here, was, on her motion, substituted party defendant in the certiorari proceeding.
The circuit court vacated the order confirming the award, as originally entered, modified the commission's decision and awarded to Della Jorsch, administratrix, compensation from the date of Jorsch's injury on October 4, 1938, to the date of his death, April 23, 1942, and for hospital, medical and surgical services.
Jorsch was employed as engineer in the asphalt plant of the plaintiff in error, located on the west side of State highway No. 54, one mile south of the village of Thornton. Jorsch's hours were from 2:00 P.M. to 10:00 P.M. He traveled to and from his work by public bus, which passed his employer's plant. On going to work he got off the bus directly in front of the plant and went to his work over a driveway leading from the slab on the highway into the premises where he was employed. At night he came out over this same driveway, crossed over the pavement and took a north-bound bus on the east side thereof. There were no lights or signals in front of plaintiff in error's plant and no lighted buildings sufficiently close to afford a light on the highway.
The right of way of the highway in front of plaintiff in error's plant is 66 feet in width. A 20-foot concrete slab extends through the center of this right of way. On either side an unpaved shoulder a few feet in width slopes down to a ditch about ten feet from the edge of the slab. A bridge over this ditch forms a part of the driveway into plaintiff in error's premises. The only means of ingress and egress for employees from the asphalt plant to the highway is over the gravel driveway which, at its junction with the slab, is about 20 feet in width and narrows down as it extends into the premises to a width sufficient to permit the passing of two trucks.
Jorsch quit work at around 10 o'clock on the night of October 4, and, after changing his clothes, took a wrench and his flashlight and walked down the gravel driveway to catch the bus. He testified that he stopped as he approached the highway and looked both ways but saw nothing; that he remembered he got up close to the edge of the pavement but he didn't remember anything after that. He didn't know an automobile had struck him until the next day. It developed that a south-bound car, driven by one Nelson Proper, struck Jorsch, knocking him to the west side of the paved slab and inflicting the injuries which have formed the basis of this proceeding.
Proper, who, so far as the record shows, has no interest in this proceeding, testified that he was traveling south on this highway at about 35 miles per hour, with his dim lights on. When he got almost in front of the plant a car with blinding lights was traveling north on the other side of the road and for that reason he was unable to see Jorsch until he was about ten feet from him and so close witness had no time to swerve the car. He testified that when he first saw Jorsch he was in the middle of the south-bound traffic lane on the concrete slab. He testified positively that he did not drive off the slab; that he clamped on the brakes as soon as he saw Jorsch; that his car stopped about ten feet beyond the point where Jorsch was struck and the right front wheel of the car was about eighteen inches inside the west line of the slab. He also testified that at the time he first saw Josech the latter was headed east across the pavement, and at that time apparently saw the car, as he started to step back, but was too late.
The right headlight and right fender of his car were crushed by the impact. He testified that the right headlight of that car was between the motor hood of the car and the right fender. He testified also that the impact broke the top radiator hose connected with his car which was in the middle of the radiator, and that the water ran out and he was unable to take Jorsch to the hospital as he started to do, and so called the county police who took the injured man to the hospital. The undisputed facts as to the injury to the car corroborate Proper's testimony that Jorsch was on the south-bound lane of the pavement. It is evident from this testimony that Jorsch, when struck, was not standing on the gravel driveway leading across the shoulder of the highway into the premises of the plaintiff in error, as his counsel contend, but was on the slab of the highway in the act of crossing over to the other side to take the bus. It is conceded his day's work was done and he was on his way home.
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