Hoops v. The Phoenix Utilities Company

• Decision Date: 05 July 1924
• Docket Number: 25,514
• Parties: J. E. HOOPS, Appellee, v. THE PHOENIX UTILITIES COMPANY, Appellant
• Court: Kansas Supreme Court

227 P. 332

116 Kan. 598

J. E. HOOPS, Appellee, v. THE PHOENIX UTILITIES COMPANY, Appellant

No. 25,514

Supreme Court of Kansas

July 5, 1924

Decided July, 1924

Appeal from Labette district court; ELMER E. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Injury to Fingers--Injury Occurred "About" Workman's Employment--Arbitration. A company engaged in engineering work as defined by R. S 44-508 had ties shipped in and unloaded at a station half a mile from the nearest point of the railway track under construction. There the ties were loaded and hauled by employees of the company to places where they were needed in the railroad track which was being constructed. Held, the place where the ties were so loaded was "about" the work of the company as that word is used in R. S. 44-505.

2. SAME--Award Not Excessive. A complaint that the amount of the award was excessive is examined and held to be without substantial merit.

P. D. Gardiner, O. W. Helsel, both of Wichita, and L. E. Goodrich, of Parsons, for the appellant.

Carl V. Rice, of Parsons, for the appellee.

OPINION

HARVEY, J.:

This is an appeal from an award and judgment in favor of the employee in a case arising under the workmen's compensation act. Appellant contends, first, that the accident causing the injury did not occur "on, in or about" the work of the employer as that term is used in R. S. 44-505; and second, that the compensation allowed is excessive.

The Phoenix Utilities Company had a contract for constructing a railroad spur track about four miles long from a point on the Frisco right of way one-half mile from Straus, Kan., south to Service. Ties used in constructing the spur track were shipped by rail to Straus and there unloaded from the car. Employees of appellant then loaded the ties on wagons and hauled them to places along the spur track wherever needed. Appellee was a teamster in the employ of appellant, hauling ties. While loading ties at Straus and straightening the ties on his load as they were thrown on by other employees of appellant, his hand was caught between two ties, causing him injury. Appellant contends that it had no supervision or control over the right of way or yards of the Frisco at Straus; that the track it was constructing began half a mile from there; hence that appellee was not "on, in or about" its work or any premises under its control. The statute applies to "employment in the course of the employer's trade or business on, in or about . . . building or engineering work. . . ." (R. S. 44-505.) "Engineering work means any work in the construction, alteration, extension, repair or demolition of a railway. . . ." (R. S. 44-508.) The word "about" as used in the statute is one of locality. (Bevard v. Coal Company, 101 Kan. 207, 214, 215, 165 P. 657; Hicks v. Swift & Co., 101 Kan. 760, 762, 168 P. 905.) The appellant in this case was engaged in the construction of a railway. The yards at Straus, where its material was piled, was as much a part of the locality of its work as was the place along the route of the railroad being constructed where they were unloaded, and it is not material who owned the ground or right of way of the Frisco where the injury occurred any more than who owned the ground or right of way where the material was being unloaded.

Appellant contends that the award is excessive. Appellee's hand was caught between two ties and injured. Within five days thereafter he told appellant's superintendent of the injury and spoke of it as having his finger mashed. Within ninety days he filed with appellant a claim for damages which stated, "His little finger on his left hand was crushed, totally disabling him from performing manual labor for a period of over two months. The first joint of the finger was crushed,...