Griffith v. Norwood White Coal Co., 45305.

• Court: United States State Supreme Court of Iowa
• Citation: 294 N.W. 741,229 Iowa 496
• Docket Number: 45305.
• Parties: GRIFFITH v. NORWOOD WHITE COAL CO.
• Decision Date: 19 November 1940

294 N.W. 741

229 Iowa 496

GRIFFITH
v.
NORWOOD WHITE COAL CO.

No. 45305.

Supreme Court of Iowa.

November 19, 1940

Appeal from District Court, Dallas County; Norman R. Hays, Judge.

Proceedings before the industrial commissioner to secure workmen's compensation because of disability resulting from an injury received while on the premises of the employer. The arbitrator awarded compensation, which award was affirmed in turn by the industrial commissioner and the district court. Defendant appeals.

Affirmed. [294 N.W. 742]

F. H. Mackaman and T. S. Stevens, both of Des Moines, for appellant.

Havner, Flick & Powers, Margaret I. Cunningham, and Forrest L. Galpin, all of Des Moines, for appellee.

MILLER, Justice.

The defendant, Norwood White Coal Company, operates a deep vein mine in Dallas County. The face of the coal is a considerable distance from the shaft of the main entry to the mine. To facilitate the work of the mine and to enable the miners to reach the face of the coal and their working rooms, the company maintains a service called a " man trip" of extra cars, whereby the employees at the commencement of work each day are transported from the shaft to the various working rooms in the mine. Most of the cars so used accommodate six men. The men sit on the floor of the cars or on pieces of coal or on seats improvised by them from boards. When so seated, there is a clearance between the heads of the men and the roofs of the various entries through which they are hauled to their work. The rules of the company require the men to be so seated, although the record does show an occasional breach of this rule. There is also a rule that only six men be permitted in one of these cars. This rule is ordinarily complied with. At times the company hires what is known as a " trip rider" to ride on a seat hung on the back of the rear car so that he is higher than the other men in the car, it being his duty to look forward, over the heads of the men, for the purpose of directing the movement of the train and notifying the motorman if anything goes wrong.

The claimant, Pete Griffith, was employed by the company as a miner, and, on the day in question, arrived at the bottom of the shaft when a man trip was ready to leave for the face of the coal, apparently loaded to its capacity of six men per car. Griffith, in violation of the rules of the company and without the knowledge or consent of the foreman in charge of the man trip, climbed on the end of the last car and was in a position where his body was higher than would have been the case had he used the method prescribed by the company of being seated in the car. There was no trip rider on this train. There was evidence that Griffith's position was substantially that of the trip rider. There is some conflict in the evidence on this point, but, for the purposes of this appeal, we must consider the evidence in the light most favorable to the claimant. After the man trip had proceeded a comparatively short distance, Griffith's head came in contact with a crossbar of the roof. By reason of this injury, he was awarded compensation for disability due to epilepsy, asserted to be of traumatic origin and caused by the injury.

I.

Appellant asserts that the district court erred in affirming the award of the industrial commissioner " for the reason that the injuries were the direct and proximate result of the voluntary and wilful act of the claimant, in disregard of his duty and in violation of the rules of his employer, by assuming a position of danger which was in no respect incidental to his employment, wholly without causal connection therewith, received when he was performing no service for his employer, arose wholly outside of the sphere of his employment, at a place where he had no right to be, and did not therefore arise out of or in the course of his employment."

This court has repeatedly recognized that, for an employee to be entitled to workmen's compensation, he has the burden of proving that the disability for which he seeks compensation is the result of an injury received in the course of his employment and arising out of the employment. Bushing v. Iowa Ry. & L. Co., 208 Iowa 1010, 1013, 226 N.W. 719; Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851; Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L.R.A.1918F, 923; Enfield v. Certain-Teed Prod. Co., 211 Iowa 1004, 1013, 233 N.W. 141; Rish v. Iowa Portland Cement Co., 186 Iowa 443, 170 N.W. 532; Sparks v. Consolidated Indiana Coal Co., 195 Iowa 334, 190 N.W. 593; Kraft v. West Hotel Co., 193 Iowa 1288, 188 N.W. 870, 31 A.L.R. 1245; Wallace v. Rex Fuel Co., 216 Iowa 1239, 250 N.W. 589.

Appellant challenges the award by asserting that the injury of which Griffith complains did not arise out of his employment. Appellant relies upon our decisions in the cases of Enfield v. Certain-Teed Prod. Co., supra; Kraft v. West Hotel Co., supra; Christensen v. Hauff Bros., supra. These cases do not require a reversal of the award made herein.

In Christensen v. Hauff Bros., supra, the employee was sent to a neighboring town by his employer and was furnished [294 N.W. 743] railroad transportation to and from such place. In undertaking to make the return trip, he attempted to board a moving freight train. Instead of waiting for the caboose, he undertook to climb upon a moving flat car. His attempt was unsuccessful. He fell and was fatally injured. In holding that the injuries so received did not arise out of the employment, we state (193 Iowa at page 1091, 188 N.W. at page 854) as follows: " We do not think that Christensen, in his attempt to throw himself upon the flat car, without any standards or projections to take hold of, was doing a thing occasioned by the nature of his employment; and therefore such act and consequent injury could not be said to arise from out of his employment. There was no justification for Christensen's attempt to board the freight train by mounting the flat car in a most unusual manner and for reasons wholly unjustifiable. In attempting to jump onto the flat car, he was not at a place where he might reasonably be, doing what a man so employed might reasonably do. We cannot conceive that Christensen's employment contemplated or comprehended any such unusual and rash act."

In the case of Kraft v. West Hotel Co., supra, the employee was a chambermaid for the defendant hotel company. Her injury was received on the premises, but after working hours. She attempted to curl her hair with a lamp. In the course of this undertaking, she was severely burned. In holding that compensation was properly denied, we state (193 Iowa at page 1293, 188 N.W. at page 872, 31 A.L.R. 1245) as follows: " An accident cannot be said to arise out of the employment when it is due to a new and added peril to which the employee by his own conduct has needlessly exposed himself. The act in question was expressly forbidden by the master, and it was a matter that did not concern either him or his business."

In the case of Enfield v. Certain-Teed Prod. Co., supra, the employee was chief engineer for the employer and with his helper had undertaken to repair an electric motor. They undertook to transport it from the first floor to the second floor on an elevator which claimant was prohibited to use. In stating claimant's contention, we state (211 Iowa at page 1007, 233 N.W. at page 142) as follows: " Claimant's theory of the case is that he was doing the employer's work and used the elevator in order to keep the motor from upsetting; there being no convenient way of fastening the same to the truck and the elevator platform. Haste was necessary, claimant maintains, in order to repair the motor so that it could be installed in running order not later than 7 o'clock p. m. So the claimant concludes his action in the premises, even if wrongful, amounted only to contributory negligence,...