Hufford v. Livingston
| Decision Date | 08 December 1922 |
| Docket Number | No. 11489.,11489. |
| Citation | 137 N.E. 279,79 Ind.App. 519 |
| Parties | HUFFORD v. LIVINGSTON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceedings under the Workmen's Compensation Act by Dale Livingston for compensation for injuries, opposed by John Hufford, employer. Compensation was awarded by the Industrial Board, and the employer appeals. Affirmed.
Murat W. Hopkins, of Indianapolis, Geo. W. Julien, and L. D. Boyd, both of Delphi, for appellant.
Ryan, Ruckelshaus & Ryan, of Indianapolis, for appellee.
The Industrial Board awarded compensation to the appellee, Livingston,and against the appellant, Hufford. The finding of facts made by the board includes the following:
“That Dale Livingston was employed by John Hufford at an average weekly wage of $23; that on May 17, 1921, he (Livingston) received a personal injury by accident arising out of and in the course of his employment, of which defendant had knowledge; *** that as a result of said injury he lost four fingers, and the heads of the metacarpal bones, of the right hand.”
The contentions in support of the assignment of error are: (1) That the finding that the injury by accident “arose out of and in the course of the employment” is not sustained by sufficient evidence; and (2) that the workman was guilty of willful misconduct.
[1] The evidence, which is practically free from conflict-the slight deviations therein being of little consequence-discloses the following state of evidential facts:
John Hufford owned and operated a machine shop. He was engaged in repairing and rebuilding threshing machines and traction engines, and had several men working for him. Livingston was employed as a mechanic. He helped to repair and rebuild threshing machines and engines, and moved threshing machines and engines on the road to and from the shop. About the 15th day of May, 1921, Hufford directed Livingston to do some work on a traction engine. That particular engine was located about 20 miles from the machine shop. The engine had been standing out in the woods for about 6 years. There was no covering over it, and during that time it had been exposed to the elements. Some one had taken off all the brasses, boxes, and pipes; and those things were to be replaced. The engine was thoroughly rusted. John Hufford and Jesse Hufford worked with Livingston on the engine. They put in pipes, coupled the pipes together, put in flues, put in an oil tank, put on a smoke-stack, and did whatever was to be done. After two days' work on the engine, Livingston's employer directed him to take the necessary tools and things and bring the engine into the shop. Livingston went in a Ford truck to the place where the engine was located, and Ivan Foster went with him. Mr. Hufford was there when Livingston arrived, and John Foster, another employé, was there also. After the engine had been steamed up, John Foster got on the engine and turned on the steam to see if it would run. He put in the clutch to see if it would move. After seeing that the engine would run, he moved it somewhat. Mr. Hufford oiled the engine, and Livingston oiled it on top. The idler was also oiled. Livingston then drove the machine through the woods, a distance of about 40 rods, and out onto the road. When the men discovered that the engine would run, Mr. Hufford said, “Come on, boys, let's load up and all go out together.”
Ivan Foster was a boy about 13 years of age, and the son of John Foster. Mr. Hufford told Ivan to open the gate, and he did open and close the gate. After closing the gate he got on the platform of the traction engine and sat down on the box. Livingston drove the engine on the road for a distance of about 60 rods. Then he got off the engine, oiled the governor and the wheel heads, and then walked around and oiled the bull pinion. He then began to oil the compensation gear and the idler. The compensation gear had cogs, a mesh of about an inch and a half. He was using a soft oil. While he was engaged in oiling the gears, the engine was moving at the rate of about two miles per hour. He was walking backward or sidewise at the side of the moving engine. In order to pour oil on the gears, he had to hold the oil can in his right hand, and, while thus engaged, the boy on the engine attracted his attention. He noticed that the boy was attempting to guide the engine, and he said to the boy, “Turn it this way.” The road was about 12 feet wide, of hard gravel surface, with a ditch on either side. When speaking to the boy, he took his eyes off his work for an instant, and that was when his hand was caught in the gears. The oil can was an ordinary one with a short spout. The gears were very rusty, and it was necessary to keep them lubricated. The rusty surface of the metal would not stand the impact of the cogs, but would scale off. There was no other position, and no other manner in which to oil the gears with that kind of oil. With regular gear grease, the proper way would have been to use a paddle. Hufford never told Livingston not to oil the engine while in motion, nor did he ever instruct him how to oil it. There was part of a guard covering location where idler and compensation gear mesh. The top half of the guard which comes over the spur gear was broken off. It was all rusted. There was no part of the engine that was not rusted. (Livingston testified that he could not have adequately oiled the gears while the engine was not in motion.) On the evening before the accident Livingston had a conversation concerning the boy Ivan Foster, in which conversation Livingston said:
Hufford answered:
“It will probably be the only engine you will have to move this spring, and you can get by with this boy.”
Just as the engine started from the woods, Hufford said to the boy:
“Ivan, you go on there now and help Dale.”
Hufford started homeward in his automobile, and John Foster followed him in the Ford truck. Hufford was about 30 rods away when the accident occurred.
It is obvious that the Industrial Board was justified in finding that the workman received his injury by accident arising out of and in the course of his employment. In other words, that finding is a legitimate conclusion drawn from the evidence. It may be that the workman manifested very poor judgment in determining the manner and method of oiling the machine, and it may be that his conduct in that respect was negligent; but the element of negligence has no place in the workmen's compensation law (Laws 1915, c. 106). Nordyke & Marmon Co. v. Swift, 71 Ind. App. 176, 123 N. E. 449;Great Lakes Dredge & Dock Co. v. Totzke, 69 Ind. App. 303, 121 N. E. 675.
[2] Appellant contends, however, that the workman was doing his work “in a perilous and unreasonable way,” and that therefore it should not be held that the injury arose out of and in the course of his employment. In support of the contention appellant relies on the case of Inland Steel Co. v. Lambert (1917) 66 Ind. App. 246, 118 N. E. 162. As to the proposition that whether an injury arises out of and in the course of the employment is a conclusion of law and not an ultimate fact, the Lambert Case has been overruled. Muncie Foundry & Machine Co. v. Thompson (1919) 70 Ind. App. 157, 123 N. E. 196;Empire, etc., Ins. Co. v. Purcell (Ind. App. 1921) 132 N. E. 664. We are dealing now with a question of fact.
[3] The query, Was the workman doing his work “in a perilous and unreasonable way”? signifies nothing more or less than the query, Was he doing his work in a negligent way? That inquiry differs radically from the inquiry raised by the following questions: Was the workman entirely outside the scope of his employment? Had he departed from the line of duty? Was he doing something not incidental to his employment? With these questions in mind, we scrutinize the Lambert Case, and find that it is readily distinguishable from the case at bar. The Lambert Case contains the following significant statement:
“In our judgment the facts do not present a situation wherein the employé negligently performed a duty, or was guilty of negligence in the performance of a duty, but rather a case where he attempted unnecessarily to do a perilous act, not reasonably incident to his employment.”
[4][5] Whether at the time of the accident Livingston was doing something not within the scope of his employment was a question primarily for the Industrial Board. It cannot be contended seriously that as to that feature the finding of the board is so unreasonable as to require that it be set aside. Indeed it may be said...
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