Lobdell Car Wheel Co. v. Subielski

• Decision Date: 05 March 1924
• Citation: 32 Del. 462,125 A. 462
• Court: Delaware Superior Court
• Parties: LOBDELL CAR WHEEL COMPANY, d. b. a., v. ANTHONY SUBIELSKI, p. b. r

125 A. 462

32 Del. 462

LOBDELL CAR WHEEL COMPANY, d. b. a., v. ANTHONY SUBIELSKI, p. b. r

Superior Court of Delaware, New Castle County

March 5, 1924

Superior Court for New Castle County, November Term, 1923.

Appeal from Industrial Accident Board, No. 245, September Term 1923.

This is an appeal by the Lobdell Car Wheel Company from a decision of the Industrial Accident Board, awarding compensation to Anthony Subielski, the claimant, for the loss of an eye.

On April 19, 1923, Anthony Subielski, the claimant, was employed by the Lobdell Car Wheel Company. His work was grinding and chipping castings, with which work he was thoroughly familiar and experienced. On the morning of the accident he was taken from a machine known as a swing grinder, as it needed repairs, and put to work on a stationary grinder, chipping the castings by hand, using a cold chisel and hammer. With this work he was also perfectly familiar. He had been working from one to two hours when he felt something in his eye. He received first aid treatment and several pieces of sand or metal were removed from his eye. He continued to work during the day, receiving treatments several times. The next day he was sent to a doctor. The doctor attended him for several weeks, when it was found necessary to remove the injured eye.

The claimant testified through an interpreter that he could not read or write the English language and that his understanding of the language, when spoken, was limited; that goggles had been furnished him by his employer; that he had understood the order to wear such goggles always when working, and knew that it was necessary for him to wear them for his protection. He denied, however, that his foreman had ever given him such orders, or had instructed him in their use. He contended that he did not understand notices about the necessity of wearing goggles, which were posted, and had not looked at the posters depicting the frequent serious results of not wearing them; that he always wore goggles while working and was positive he had them on at the time of the accident; that he had never made a statement that he was not wearing them at the time; that the goggles furnished him and which he then wore were defective, and that such defects were the cause of his injuries. He admitted, however, that he had not informed his foreman of such defects.

The employer introduced evidence to show that the foreman furnished the claimant with new goggles in perfect condition when he entered the company's employ on the present occasion, about ten days before the accident, and that he was then ordered to use them at all times while working; that while it had been necessary to reprimand others for not wearing them, he did not recall that he had ever seen the claimant without goggles while working during his employment with the company; that signs were posted directing the employees to wear goggles as well as posters showing the serious accidents likely to happen if not used; that he had not seen the claimant for from one to two hours preceding the accident; that immediately after the accident the claimant upon inquiry, stated that he had taken off the glasses to rest his eyes, because they were heavy; that meetings of the workmen were held from time to time to instruct the men in the use of safety devices and to inform them of the necessity for their use, and the dangers impending by failure to comply with orders of the company; that the order to wear goggles was repeatedly violated, but when any person was seen not wearing them he was directed to cease work in order to put them on before again proceeding; that on one occasion a man was dismissed by reason of his failure or refusal to wear goggles; that the claimant did understand the English language sufficiently to know what was said to him and for him to understandingly reply.

The employer contended at the hearing before the Industrial Accident Board, and here contends, that the claimant was not entitled to compensation because he had at the time of the accident willfully failed or refused to use a safety appliance (goggles) furnished him by the employer for his protection. The employee insisted that he was wearing the goggles at the time of the accident, but that they were defective and that his injuries were caused by such defects. The Industrial Accident Board, without passing upon the fact as to whether the employee was or was not wearing goggles at that time, and whether they were defective and his injuries were caused by such defects, held that the claimant, even if he was not wearing the goggles then, was not guilty of willful failure or refusal to wear a safety appliance furnished him by the employer, and was, therefore, entitled to compensation for the loss of his eye.

The award of the Industrial Accident Board is reversed, and the cause remanded to that board for further proceedings in conformity with this opinion.

Harry P. Joslyn for defendant below, appellant.

Henry R. Isaacs for plaintiff below, respondent.

RICE AND HARRINGTON, J. J., sitting.

OPINION

RICE, J.

The question presented by the record is whether or not the claimant (granting that he did not wear goggles at the time of the accident) was guilty of willful failure or refusal to use a safety appliance provided for his protection by the employer. Under the authority of the case of Rudnick v. White Bros., 30 Del. 576, 7 Boyce 576, 109 A. 881, the question seems to be a mixed one of law and fact, and the claimant does not otherwise contend. In determining whether or not an injury to an employee has or has not been due to willful misconduct requires that certain principles of law be applied to the facts of the case, and, therefore, the determination of the question would appear to be a conclusion of law, and the question in its entirety to be a question of both law and fact. If the question presented should be one of fact alone, this court in an appeal from a decision of the Industrial Accident Board would not disturb the finding of the board, if there was sufficient evidence to reasonably support the finding of the board. Benjamin F. Shaw Co. v. Palmatory et al., 30 Del. 197, 7 Boyce 197, 105 A. 417; Rudnick v. White Bros., 30 Del. 576, 7 Boyce 576, 109 A. 881; Shockley v. King, 1 W. W. Harr. (31 Del.) 606, 117 A. 280.

Section 3193jj of the Code of 1915, Section 129 of the ...