Inland Steel Co. v. Lambert

• Decision Date: 19 December 1917
• Docket Number: No. 9875.,9875.
• Citation: 118 N.E. 162,66 Ind.App. 246
• Parties: INLAND STEEL CO. v. LAMBERT.
• Court: Indiana Appellate Court

66 Ind.App. 246

118 N.E. 162

INLAND STEEL CO.

v.LAMBERT.

No. 9875.

Appellate Court of Indiana, Division No. 2.

Dec. 19, 1917.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Harold B. Lambert, employé, to recover compensation from the Inland Steel Company, employer. From an award of the Industrial Board, the employer appeals. Reversed, with orders as indicated in the opinion.

McAleer & Dorsey, of Hammond, for appellant. George Miller, of Indiana Harbor, and Bomberger, Peters & Morthland, of Hammond, for appellee.

CALDWELL, J.

The following is the substance of that part of the board's finding material in determining the questions presented:

March 7, 1916, appellee was in the employment of appellant at an average weekly wage of $20.11, in the capacity of a switchman. As such he performed his duties in connection with the operation of a locomotive switch engine over tracks extending through yards connected with and a part of appellant's plant. His regular duties as a switchman kept him engaged from 6 o'clock p. m. until 6 o'clock a. m. of each day. By the terms of his employment he was required to deposit a card in a clock located at the entrance to appellant's plant, both when he commenced work in the evening and also when he quit in the morning. The clock registered on the card the hour when he commenced and quit work, respectively. The distance from the point where he quit work in the morning to the point where the clock was located was equal to about five city blocks. A path led from the former point to the latter. On the morning of said day the path for a distance of about 70 feet between said points was impassable for pedestrians, by reason of an excavation about 10 feet deep. On the morning of that day appellee, having completed his active duties as switchman, changed his work clothes for street clothes and started walking along said path to go to the clock to register out. Before he reached the place where the path was torn up as aforesaid, the engine upon which appellee had worked during the 12 hours preceding came along in charge of the day crew, running in the direction of the clock, whereupon appellee attempted to board it for the purpose of avoiding the excavation in the path, and for the purpose of arriving at the clock more quickly, and in so doing suffered an injury resulting in the loss of his left foot above the ankle joint. Appellee had been so engaged as a switchman for 2 months, during which time appellant had in force a rule printed in its rule book prohibiting any employés from riding on a switch engine, except the employés engaged at the time in its operation. No representative of appellant had informed appellee of the existence of the rule. When he began work for appellant, 2 months prior to his injury, he was furnished a rule book printed in foreign language, which he could not read. He returned the book to appellant's employment office, and advised the person in charge that the book was printed in a language which he could not read, and was thereupon informed that rule books printed in the English language were not at that time in stock. He was requested to return later, that he might be furnished a rule book printed in English. Appellee was thereafter on several occasions in the employment office, but made no request for such a book, and none was furnished him. At no time prior to his injury had appellee boarded a switch engine after discontinuing his active duties, for the purpose of riding to the clock to register out, but on several occasions he had ridden on the engine from a point near the clock to the point where he changed his street clothes for work clothes and began his active duties for the night.

The board finds also as facts that appellee received his injuries “by an accident arising out of and in the course of the employment,” and that his injury was not due to his own willful misconduct. On the finding the board awarded appellee compensation for 125 weeks at the rate of $11.06 per week, under the provisions of subdivision (e) of section 31 of the Workmen's Compensation Act (Acts 1915, p. 392).

[1] Section 59 of the act provides that in each proceeding before it the board shall make and file a statement of the facts. We are first required to determine whether under and finding it appears that appellee received his injury “by an accident arising out of and in the course of the employment.” It will be observed that the statement of facts includes a finding that such was the origin of the injury. However, a statement of facts should consist of ultimate facts, and should not include either evidentiary facts or conclusions of law. To determine that a certain injury was the result of an accident, or that it arose out of or in the course of the employment, or that it was or was not due to the willful misconduct of the person involved, as those terms are used in the act, requires that certain fixed legal principles be applied to the ultimate facts of the particular case. It follows that such an inquiry involves a law question, and therefore that the result of such inquiry, as that the accident did or did not arise out of or in the course of the employment, or whether it was due to willful misconduct, is a legal conclusion rather than an ultimate fact. Lagler v. Roch, 57 Ind. App. 79, 104 N. E. 111;In re Matthewson (Mass.) 116 N. E. 831;Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684.

[2][3] However, since it is within the province of the board to determine in the first instance whether an injury involved in the proceeding before it was the result of an accident, and whether it arose out of and in the course of the employment, it is proper for the board to include in its finding its general conclusions respecting such matters. Such conclusions, however, are reviewable by this court, and when so reviewed they are binding on this court only when justified by the ultimate facts, which must be included in the finding in order that such legal conclusions may be sustained. It follows that we cannot consider such conclusions of law in determining whether under the ultimate facts the injury here was the result of an accident, and whether it arose out of and in the course of the employment as those terms are used in the act.

[4] It is not contended that the injury here was not the result of an accident, as that term is used in the act. We shall, therefore, give that element no further consideration. It appears from the finding that at the time when appellee was injured, although he had completed his hours of active service as a switchman for that night, yet he was proceeding to the discharge of a further duty of his employment required of him by his employer; that is, he was proceeding to register out. We therefore conclude that the injury was suffered in the course of the employment. The phrase “in the course of,” as used in our act and similar acts, has reference to the time, place, and circumstances under which the accident takes place, as distinguished from the origin or cause of the accident. Such phrase relates to the circumstances under which an accident of a given character or quality takes place. Fitzgerald v. Clark & Son, 1 B. W. C. C. 197; Eugene Dietzen Co. v. Industrial Board, supra.

The following facts bear more particularly on the question whether the accident arose out of the employment: The path being obstructed as indicated, appellee attempted to board the engine before he had reached such obstruction, and as a result he was injured. In attempting to board the engine two purposes or motives actuated him: First, he desired to avoid the obstruction; and, second, that he might reach the clock and register out more quickly. In attempting to board the engine, he was violating appellant's rules; but appellant had not advised him that there was such a rule, and a book containing such rule, printed in a language which he could read, had not been furnished him. Appellee had at no time theretofore attempted to board a switch engine after he had completed his active duties for the day, that he might ride to the point of the clock to register out; but he had ridden in the other direction, as indicated.

[5] The burden was on appellee to establish the facts necessary to support a conclusion that the accident arose out of the employment, and hence there are certain facts not found that should be considered also. Thus, it is not found that there was not a path around the excavation, or that there was not some other route to the clock, or that appellee did not know of the existence of the rule from some other source than appellant, or that there was any custom for the employés to ride the engine, as appellee attempted to do, or what knowledge appellant had on the subject, or that the engine was in motion on the other occasions when appellee boarded it and rode in the opposite direction, or what was the speed of the engine when appellee attempted to mount it on the occasion involved here. It would seem that, in the process of attempting to classify appellee's conduct here as being reasonably incident to his employment, the weight of such unfound facts should count against him.

We proceed to the question of whether it appears here that the injury arose out of the employment. The language “injury by accident arising out of and in the course of the employment,” as found in our act, is taken literally, but perhaps remotely, from the English Workmen's Compensation Act of 1897; that act containing a provision to the effect that the employer shall be held liable in cases otherwise coming within the act where “personal injury by accident arising out of and in the course of the employment is caused to a workman.” L. R. Stat. 60-61 Vict. p. 53. The same language is found also in the English act of 1906. 6 Edw. VII, p. 58; Honnold on Workmen's Compensation, vol. 2, p. 1686.

“It is common learning that the adjudged construction...