Heyworth v. Indus. Comm'n

• Decision Date: 02 June 1926
• Docket Number: No. 16062.,16062.
• Citation: 151 N.E. 920,321 Ill. 298
• Parties: HEYWORTH v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

321 Ill. 298

151 N.E. 920

HEYWORTH

v.INDUSTRIAL COMMISSION et al.

No. 16062.

Supreme Court of Illinois.

April 23, 1926.

Rehearing Denied June 2, 1926.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding under the Workmen's Compensation Act by Margaret Leeson for the death of Martin Leeson, her husband, opposed by James O. Heyworth, employer. An award for claimant was confirmed by the circuit court, and the employer brings error.

Affirmed.

George A. Schneider, of Chicago, for plaintiff in error.

Kelly, Burns & Daly, of Chicago (James D. Murphy, of Chicago, of counsel), for defendant in error.

DUNCAN, J.

The circuit court of Cook county confirmed an award of compensation of $16 per week for a period of 265 weeks and $10 in addition for one week, in favor of Margaret Leeson, widow of Martin Leeson, deceased, and against James O. Heyworth, plaintiff in error. A writ of error was allowed to Heyworth by this court for a review of the record.

The record discloses the following facts: Martin Leeson, also referred to in the record as Martin Gleason, was and had been employed by James O. Heyworth for about three years previous to his death. His duties were that of ‘handy man’ for Heyworth, who was engaged in the business of construction and engineering work. On June 9, 1922, Heyworth shipped from Chicago to Jim Falls, Wis., a locomotive crane, to be used in construction and engineering work, and the deceased was employed to get in touch with the yardmaster at the various junctions through which the crane was being carried and to see that the crane was pushed through the junctions promptly as directed. It was within his duties to ride on the crane, or on the cars with the crane, if permitted to do so by the train crew. There was a cab on the crane and a seat within it. About 7:30 o'clock in the evening of June 9, 1922, Leeson was killed by being run over by the train on which the crane was being carried out of the yards of the Chicago & Northwestern Railroad Company in Chicago. The train was pushed out by an engine for a distance of about 150 yards at the rate of about 5 to 10 miles an hour. It appears that Heyworth owned four freight cars, which were used by him for shipping tools and other materials,and that these cars were attached to the freight rain that carried the crane from South Chicago to Jim Falls, Wis., and that the crane was on two of these cars.

The only evidence relating to the manner in which Leeson was killed was related by two of the train crew, Buckley and Rogers. Buckley testified that the train was on railroad trucks, and that the boom of the crane was supported by a flat car immediately in front of the crane. He started to work on the train about 7:30 o'clock in the evening,and had orders to push the train out of the yards. He saw Leeson walking by the train, and a few minutes later saw him on the car, referred to as an ‘idler,’ supporting the boom of the crane. Leeson was lying on the car, with his head about 12 inches from the end of the car and his feet towards its center. The car was about 6 feet wide, and the boom resting on the idler took up a space of about 2 feet in the center, leaving on each side of the boom a space of about 2 feet. He last saw Leeson just after the train started moving, and he was still in the same position on the car. As the engine passed the witness he stepped on the footboard of it, and the engine pushed the train about 150 yards. The crane was about four car lengths in front of the engine. The destination of the crane was Butler, Wis. After the engine had pushed the train out of the yards, he got off of the engine at the office, and the other conductor and brakeman went back with the engine. In about 5 or 10 minutes the report came to the yard office that Leeson had been killed. Rogers testified that he was on his way back with the engine after the train had been pushed out of the yards. He saw the body of Leeson lying on the outside of the track and his limbs on the inside, and he thought the engine had run over Leeson when they pushed the train out of the yard, as there was no other traffic on the track. He did not see Leeson previous to this time.

O. R. Waldum testified: He is superintendent of construction for James O. Heyworth, and has been such superintendent since 1918. He knew Martin Leeson in his lifetime, and had known him since 1920. He was in charge of Martin Leeson and assigned him to his duties. He was arranging to ship for Heyworth, from South Chicago to Jim Falls, equipment, part of which was a Bay City locomotive train. Leeson asked him about his running the crane through, and Waldum told him that it would be all right for him to do so. He stated that Leeson's duties in connection with that job were to stay with the crane while the train was being made up in the yards, and to ride through on it, or with it, if the train crew would allow him to do so. If there was a passenger train leaving a few hours later which would reach the next division point ahead of the freight, ‘he would naturally take the passenger so as to beat the freight in and get acquainted with the yardmaster at the next division point. To a certain extent it would be left to the judgment of Leeson. Mr. Leeson was not disobeying any orders of mine when he was staying with the train.’ He further stated that he had no doubt that Leeson was doing his duty by seeing the crane through the yards. On being asked if he wanted it embodied in his answer, ‘without a doubt he was doing his duty,’ and ‘Could you say whether or not he was disobeying any of your orders or instructions?’ He answered, ‘No; I can't say that he was disobeying any of my instructions; he was riding the car through; that was his job.’

It is admitted by plaintiff in error that the employer had actual notice, but not written notice, of the accident within 30 days of its occurrence. There is no evidence in the record that a written notice was served upon Heyworth, either personally or by registered mail, reciting the name and address of the injured employee and the approximate date and place and cause of the accident. It was stipulated before the arbitrator that the questions in dispute were whether or not the injury was sustained while the employee was engaged in interstate commerce and...