Industrial Com'n v. McKenna

• Decision Date: 01 July 1940
• Docket Number: 14745.
• Parties: INDUSTRIAL COMMISSION et al. v. McKENNA et al.
• Court: Colorado Supreme Court

104 P.2d 458

106 Colo. 323

INDUSTRIAL COMMISSION et al. v. McKENNA et al.

No. 14745.

Supreme Court of Colorado

July 1, 1940

In Department.

Error to District Court, Lake County; William H. Luby, Judge.

Proceeding under the Workmen's Compensation Act by Elizabeth J McKenna, on behalf of herself and as next friend and natural guardian of her minor sons, Charles J. McKenna and others opposed by the Moraine Mining Company, employer, and the State Compensation Insurance Fund. To review a judgment setting aside an award of the Industrial Commission of Colorado denying compensation to the claimant, the Moraine Mining Company and the State Compensation Insurance Fund bring error.

Affirmed.

Byron G. Rogers, Atty. Gen., and Frank A. Bruno Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Harold Clark Thompson and Louis Schiff, both of Denver, for plaintiffs in error Moraine Mining Co. and State Compensation Insurance Fund.

Eugene A. Bond and Harold A. Grant, both of Leadville, for defendants in error.

YOUNG Justice.

The Moraine Mining Company and State Compensation Insurance Fund prosecute a writ of error to reverse a judgment of the district court of Lake county in favor of the widow and surviving children of Charles A. McKenna, deceased. The court set aside an award of the Industrial Commission denying compensation to them with instructions that the commission enter an award granting compensation in accordance with the provisions of the Workmen's Compensation Act. '35 C.S.A. c. 97, § 280 et seq.

The parties will be herein designated as the deceased, the claimants, the employer, and the insurer.

Deceased was employed as a mucker in the employer's mining operations in the vicinity of Leadville. On the day that he came to his death he and another workman, DeLong by name were engaged in removing broken rock that had been shot down in one of the drifts in the mine. They had worked about seven hours of their eight hour shift. It was their duty to clear the drift during their shift. Twelve to fourteen cars of broken rock was a reasonable quantity for two men to remove during one shift. On this particular day the two men had cleared away sixteen cars during the first seven hours of work and there still remained four or five carloads to be removed to clear the way for the next crew. The evidence is clear that they had performed an unusually hard days work. Some time Before this deceased had remarked about the work being 'exceptionally harder' than it had been and that he was tired. DeLong testified that deceased, though a small man weighing about 130 pounds, was a fast and hard worker. About an hour and a quarter Before the shift ended deceased returned from pushing a car of rock down to the shaft and found that DeLong, in lowering another car down the incline, which was about a 35~ slope, into the drift had derailed the car about fifteen or twenty feet from the top of the incline. Deceased went down to the car to lift and pull it back onto the track and DeLong remained at the top to slacken the cable with which it was being lowered. While deceased was lifting on the car, which weighed about 800 to 1000 pounds, DeLong saw him slump over, and upon going to him found him unconscious. He pulled him up into the tunnel and about this time Brady, the shift boss, came along and he and DeLong gave the deceased such first aid as they could by rubbing his body. His wrists they found cold. As soon as possible they conveyed him to the top of the shaft and called a doctor who, upon an examination, found that the man...