Indian Creek Coal & Mining Co. v. Wehr

• Court: Indiana Appellate Court
• Writing for the Court: McMAHAN
• Citation: Indian Creek Coal & Mining Co. v. Wehr, 74 Ind.App. 141, 128 N.E. 765 (Ind. App. 1920)
• Decision Date: 17 November 1920
• Docket Number: No. 10689.,10689.
• Parties: INDIAN CREEK COAL & MINING CO. v. WEHR et al.

74 Ind.App. 141

128 N.E. 765

INDIAN CREEK COAL & MINING CO.

v.WEHR et al.

No. 10689.

Appellate Court of Indiana, Division No. 2.

Nov. 17, 1920.

Appeal from State Industrial Board.

On petition for rehearing. Denied.

For former opinion, see 127 N. E. 202.

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

McMAHAN, C. J.

Our statements in the principal opinion, wherein we said appellant employed about 400 men in and around its mine, all of whom lived in Vincennes, and that Mr. Wehr continued his work in the office until it was about time for the train to start, are not strictly correct. We should have said that appellant employed in and around its mine about 400 men, who lived in Vincennes, and that according to the statement of the appellant in its brief these were practically all of the men who were employed by appellant at this mine. While there may be no positive evidence that Mr. Wehr continued at his work, it is clear that he and his assistant remained in the office until the train was ready to leave, when they ran out to catch it. Some of his work was performed in the office. There is no direct evidence as to when he quit, other than the statement of appellant's superintendent that his quitting time was 3 o'clock and that he had quit work when he left the office. To be more nearly accurate, we should have said that when he was injured he was leaving the office where he had been at work, but was yet on the premises of the appellant.

The appellant, however, contends that at the time of his injury he was not on the premises of appellant, but was on the right of way of the railroad company. There is no evidence that the railroad company owned a right of way. The legitimate inference to be drawn from the evidence is that the spur track, where Mr. Wehr was killed, was laid on the premises of the appellant. The evidence is that the mine is about 3 miles south and east of the main line of the Indianapolis & Vincennes Railroad; that, when the mine was opened, a spur track was laid from the main line to appellant's mine, for the purpose of getting coal from the mine; that the spur track was used as a siding for cars and for the miner's train, which ran from Vincennes to a point 10 or 12 feet from the mine, and that appellant's property extended about 1,000 feet north of the mine.

The evidence is not positive as to who owned this spur track. The president of the appellant testified that it was built and owned by the railroad company. Mr. Donie, the superintendent, said he did not know who owned it. Prior to the war the railroad kept it in repair, but, when the government took possession of the railroads, the War Department issued instructions that appellant should make the repairs to this track, if it wanted the track maintained. Following this instruction, the superintendent says, appellant made the repairs, while the appellant's president says it refused to make them.

In 1912 the appellant entered into an agreement with the railroad company for the operation of the miner's train, as stated in the principal opinion. The train was operated under that agreement until after the decision in the Stevens Case, 114 N. E. 1001. After that decision there were one or two meetings between officials of appellant and the railroad company relative to the operation of the train, and while appellant's superintendent testified that this contract had been abrogated, no new contract was ever made between the appellant and the railroad. The railroad company continued to run the train the same as it had been doing before the decision in the Stevens Case, and appellant continued to pay $500 a month for the use of this train, and to deduct a sufficient amount from the pay of the miners riding on it to recoup itself for the money it paid to the railroad company, the same as it had theretofore been doing. The evidence conclusively shows, without any contradiction, that there was no change as to the method of paying for the train, or in the amount of money which appellant, through its system of bookkeeping, retained out of what it was pleased to term the monthly wage of its employees. The fact remains that it was necessary for appellant to have the train, and that it paid the railroad company $500 a month for its use.

The amount retained out of the so-called monthly wage of each man was not the same each month. Some months $1.50 was deducted, although $1.25 seems to have been the amount usually deducted, as that was generally sufficient to raise the $500. Indeed, it appears that, at the end of one month, the appellant, after paying the railroad company the $500, had some money on hand, which it had collected from the employees, and which it did not then pay to the railroad, and the next month it deducted only $1 from the pay of each man, as that was sufficient, with the money on hand, to make up the $500. It is certainly a fair inference from the evidence that the railroad, through some kind of an agreement with appellant, expected to and did receive from appellant $500 a month for the use of this train, and that the railroad was not interested in and did not pretend to fix the amount that should be levied upon the miners by appellant in recoupment.

Practically all the men employed by appellant in this mine lived in Vincennes. The evidence does not disclose whether there were any houses near the mine where any of these men could live, but as testified to by appellant's superintendent the men lived in the city, and it was necessary to get them out to the mine; that appellant would have difficulty in getting men, if it did not provide a way for them to get to the mine; that it was customary, where mines were so located, that they arrange for a train; that it was necessary for appellant to have a train to get the men. If the miners had to pay the regular fare, appellant could not get them out to the mine; and if they did not run the train, the men could not get to the mine, and the mine could not operate.

[1] One of the most difficult problems met with in the enforcement of the Workmen's Compensation Act (Acts 1915, c. 106) is the determination of the question whether an injury arose out of and in the course of the employment. The employment is not limited to the exact moment when the workman reaches the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Whether an employee, in going to or returning from the place of his employment, is in the line of his employment, is governed and controlled by the particular circumstances and facts of each case. There must, however, be a line beyond which the liability of the employer cannot continue. Where that line is to be drawn is usually a question of fact. Wabash R. Co. v. Industrial Comm., 294 Ill. 119, 128 N. E. 290. To the same effect is Smith v. South, etc., Colliery Co., 88 L. T. 5, 5 W. C. C. 14, where the court said:

“It is a question of fact up to what point of time the employment can be said to continue after the workman has ceased working. While the workman is leaving the place where he is employed, I think that, for the purpose of this act, his employment would still continue. But, though his employment may continue for an interval after he has actually ceased working, yet there must come a time when he can no longer be said to be engaged in his employment in such a way that an accident happening to him can be said to have arisen out of and in the course of his employment. There must be a line beyond which the liability of the employer cannot continue, and the question where that line is to be drawn in each case is a question of fact.”

The usual rule appears to be that a man's employment does not begin until he reaches the place of his work or the scene of his duty, and does not continue after he has left the premises of his employer. Bradbury on Workmen's Comp. (3d Ed.) 468. Courts have been liberal in so interpreting Workmen's Compensation statutes as to bring many cases within the statute, where the acts of the employees seemed to be outside of the strict and ordinary lines of duty. As where an employee was injured while eating his dinner upon the premises in...