Indian Creek Coal & Mining Co. v. Wehr, 10689.

• Citation: 127 N.E. 202,74 Ind.App. 141
• Decision Date: 30 April 1920
• Docket Number: No. 10689.,10689.
• Parties: INDIAN CREEK COAL & MINING CO. v. WEHR et al.
• Court: Court of Appeals of Indiana

74 Ind.App. 141

127 N.E. 202

INDIAN CREEK COAL & MINING CO.

v.WEHR et al.

No. 10689.

Appellate Court of Indiana, Division No. 2.

April 30, 1920.

Appeal from Industrial Board.

Claim by Lucile Wehr against the Indian Creek Coal & Mining Company and others before the Industrial Board. From an award in favor of claimant, the named company appeals. Affirmed.

Chas. E. Henderson and James L. Murray, both of Indianapolis, for appellant.

Chas S. Batt and Walter S. Danner, both of Terre Haute, for appellee.

McMAHAN, J.

This is an appeal from an award made by the Industrial Board in favor of appellee, Lucile Wehr, on account of the death of her husband, Lloyd Wehr.

Appellant's contention is that the injury which resulted in the death of Lloyd Wehr did not arise out of or in the course of his employment with appellant, but that it was the result of an accident which occurred after he had quit work for the day and while he was a passenger upon a railroad train. Appellant owned and operated a coal mine located about 13 miles from Vincennes and employed about 400 men in and around this mine, all of whom lived in Vincennes. There were no houses at or near the mine where these men could live, and it was necessary that they be transported to and from their work by railroad. This mine was located between 3 and 4 miles away from the Indianapolis and Vincennes branch of the Vandalia Railroad. In 1911, when the mine was opened appellant entered into an agreement with the railroad, under which a spur track was constructed from the railroad to the mine for the purpose of hauling the coal from the mine. In January 1912, appellant and the railroad company entered into an agreement whereby the railroad company agreed to run a train from Vincennes to the mine and back each work day for the purpose of carrying the miners and employés of appellant to and from their work. The appellant agreed to and did pay the railroad company $500 a month for the use of this train, and deducted $1.25 a month from the wages of each of its employés for the privilege of being carried on this train. The employés were required by appellant to, and they did, sign an agreement whereby they assumed all risk of personal injury or death while riding on said train, or in boarding or alighting therefrom, and released the appellant and all others connected with or concerned in the running of said train from all liability for damages on account of any personal injury sustained while getting on, alighting from, or riding on said train. A copy of said agreements between appellant and the railroad and between appellant and its employés is set out in Vandalia v. Stevens, 114 N. E. 1001, and need not be copied here.

Lloyd Wehr was in the employment of the appellant and three other coal companies. On the 13th of January, 1919, he was working for the appellant. He was a civil engineer, and his duties consisted in surveying the mine and making maps thereof. In doing this work, he worked in and around the mine as well as in the office. The train which carried the miners to and from their work left Vincennes in the morning of each day, and on the return left appellant's mine at 3:45 p. m. On the afternoon of said day, Mr. Wehr had been at work in the office. The regular quitting time for the men working at the mine was 3 o'clock. On this afternoon, Mr. Wehr continued at his work in the office until just about time for the train to leave, when he ran out to catch the train, which was just starting, and few minutes later he was found on the railroad track between the rails with both legs broken and crushed. He was found at a point about 200 feet from the office where he had been working, and about 40 feet from the tipple. No one saw him at the time he was injured. He was not seen on the train, nor did any one see him get on the train. He was one of the last to leave the office. Mr. Donie, who was the superintendent of appellant, in his testimony said:

“I did not see him get killed, but did see him about two minutes afterwards lying on the track of the main spur that brings the cars from the old I. V. to the mine. *** The accident happened about 50, 75, or 100 feet from the end of the track at the mine. He was killed by the last or next to the last coach. He fell and was crushed. He had been doing general work around the mine that day. *** He was the last to get on the train. When I came around he was lying on the ground and the gravel pile prevented us from seeing the accident. *** He did not have any duties for the mine on the train. His duties in relation to the mining company were all performed at the mine. He was not employed to go different places for the mine. When he left the mine his day's work was over, and he attempted to board the train to go to the place where he was boarding. He left the office just ahead of us, and he had quit his work when he left the office.”

Another witness, who was on the train, said it had pulled out about 100 yards when he heard that a man had been run over. He went back and saw Mr. Wehr. He was about 40 feet from the tipple lying between the rails. He was conscious at that time, but did not say he had been run over by the train. His limbs were practically crushed off. He was on the track where the train had just passed. The witness did not see him get on the train and did...