H.W. Nelson R. Const. Co. v. Indus. Comm'n of Illinois

• Citation: 122 N.E. 113,286 Ill. 632
• Decision Date: 20 February 1919
• Docket Number: No. 12316.,12316.
• Parties: H. W. NELSON R. CONST. CO. v. INDUSTRIAL COMMISSION OF ILLINOIS et al.
• Court: Supreme Court of Illinois

286 Ill. 632

122 N.E. 113

H. W. NELSON R. CONST. CO.

v.INDUSTRIAL COMMISSION OF ILLINOIS et al.

No. 12316.

Supreme Court of Illinois.

Feb. 20, 1919.

Error to Circuit Court, Winnebago County; Robert K. Welsh, Judge.

Proceedings under the Workmen's Compensation Act for compensation for the death of Hugh H. McGhan, by Laura B. McGhan, administratrix, opposed by the H. W. Nelson Railroad Construction Company, the employer. Compensation was awarded by the Industrial Commission, and the record of proceedings before it quashed and award set aside on certiorari, and from the judgment the administratrix prosecutes error. Affirmed.Hyer & Gill, of Rockford, for plaintiff in error.

E. M. St. John, of Rockford, for defendant in error.

DUNCAN, C. J.

A writ of certiorari having been sued out of the circuit court of Winnebago county to review the decision of the Industrial Commission awarding compensation to plaintiff in error, Laura B. McGhan, administratrix of the estate of her father, Hugh H. McGhan, deceased, the court quashed the record of the proceedings before the commission and set aside the award. From that judgment this writ of error was prosecuted, the trial judge having certified that this cause is one proper to be reviewed.

Defendant in error, the H. W. Nelson Railroad Construction Company, on October 11, 1915, was engaged in construction work on a railroad bridge of the illinois central Railroad Company which crossed the Rock river at Rockford. The bridge carried a single railroad track, upon which the Illinois Central trains passed back and forth at frequent intervals. No footpath for pedestrians on said bridge was provided. On that date Hugh H. McGhan was going across that bridge from the east side of Rock river, where he had been at work for defendant in error as a stationary engineer, to the west side of said river for the purpose of eating his lunch, having left his dinner pail on that side of the river. As he was crossing the bridge during the noon hour intermission he was struck by an Illinois Central train and knocked into the river. He attempted to avoid being hit by the train by crawling out onto the ends of the ties. He was struck by the engine on the head, was taken from the river some distance downstream and carried to a hospital, where he was given a prophylactic treatment for typhoid because of the river water he had taken into his system. He remained in the hospital about four days and was then taken to his home. About the tenth day after his injury he became weak, and a few days later he suffered urinary trouble. An analysis of his urine showed the presence of sugar, and the diagnosis disclosed diabetes. There is no dispute as to the fact that he suffered traumatic diabetes, which was directly due to his accidental injury, and from which he died September 14, 1916.

It is agreed that both defendant in error and McGhan were subject to the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) at the time of the accidental injury to the deceased; that his compensation was $2 per day, based on a 200 working day year; and that plaintiff in error was appointed administratrix of his estate. The dispute in the case is as to whether the injury arose out of and in the course of his employment. The circuit court set aside the award on the ground that there is no evidence in the record tending to support the finding of the commission that the injury from which the deceased died arose out of and in the course of his employment.

The general rule announced in both English and American decisions is that going to lunch by an employé is an incident of his employment; that the dinner hour although not paid for by the employer, is included in the time of employment; that a temporary absence from the place of employment for the purpose of procuring food does not suspend the employment; that an injury occurring during such a temporary absence arises out of and in the course of such employment; and that it makes no difference that the injury occurred off the premises of the employer if the employé was using premises which he had a right to use and which provided the only available way to reach the point to which he was going for lunch. In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318, and footnote thereto, in which a large number of authorities are collated. In the case of Milwaukee Western Fuel Co. v. Industrial Com., 159 Wis. 635, 150 N. W. 998, it was held that an injury arose out of and in the course of the employment where the employé...