Lynchburg Steam Bakery Inc v. Garrett

Decision Date16 November 1933
Citation171 S.E. 493
PartiesLYNCHBURG STEAM BAKERY, Inc. v. GARRETT.
CourtVirginia Supreme Court

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Law by George Vester Garrett for injuries, opposed by Lynchburg Steam Bakery, Incorporated, employer. The Industrial Commission made an award in favor of claimant, and the employer appeals.

Affirmed.

Argued before CAMPBELL, C. J„ and HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

John D. Easley, of Lynchburg, for appellant.

Philip H. Hickson, of Lynchburg, for appellee.

CAMPBELL, Chief Justice.1

This is an appeal from an award of the Industrial Commission in favor of George Vester Garrett. The facts found by the commission are as follows:

"The evidence disclosed, as the pertinent facts surrounding the issue, that a twelve year old son of the shipping clerk of the employer had entered the premises at about 8:15 o'clock P. M. The foreman knew that he was there in violation of a plant rule prohibiting loitering. He knew the boy possessed a gravel-flipper, and that he had threatened to shoot him (the foreman) with it. This foreman admonished the boy against the danger of using the device in the plant.

"The boy threatened to shoot the claimants and the device was taken from him and turned over to his fourteen year old brother; this was done on two occasions; lastly, while the claimant was pursuing the duties of his employment, the boy shot him in the right eye with a paper clip, entirely destroying the vision of that eye.

"It was stated by the foreman that he was not inclined to enforce the rule prohibiting loitering because he felt that that was the duty of the boy's father, who was shipping clerk."

The ruling of the commission that the claimant's injury "arose out of and in the course of his employment" is assigned as error.

This court, in Farmers' Manufacturing Co. v. Warfel, 144 Va. 98, 131 S. E. 240, 241, has construed the language "arising out of and in the course of his employment." Prentis, C. J., delivering the opinion of the court, said:

"In Edelweiss Gardens v. Industrial Commission, 290 111. 459, 125 N. E. 200, compensation was allowed to dependents of a deceased waiter in a restaurant, who was struck by a boy working in the same restaurant, arising out of a sudden quarrel during the performance of their duties.

"While it seems impossible to formulate any general rule which can be applied to all

dd

cases, this seems to be a fair statement taken from the case last cited: 'If the injury can be seen to have been a natural incident of the work, and to have been contemplated by a reasonable person as a result of the exposure occasioned by the nature of the employment, it may be said to arise out of the employment. An injury not fairly traceable to the employment as the contributing proximate cause, and which comes from a hazard to which the employee would have been equally exposed' otherwise, 'does not arise out of the employment. The causative danger must be peculiar to the work and incidental to the character of the business. This court has sustained an award for an injury to an employee received in a fight with another employee, which was not a mere personal matter, but grew out of a quarrel over the manner of conducting the employer's business, and where the evidence tended to show the injured employee was not responsible for the assault. Pekin Cooperage Co. v. Industrial Com., 285 111. 31, 120 N. E. 530; Swift & Co. v. Industrial Com., 2S7 111. 564, 122 N. E. 796; Chicago, R. I. & Pac. Ry. Co. v. Industrial Com.. 288 111. 126, 123 N. E. 278, 10 A. L. R. 1170.' "

The facts found by the Industrial Commission disclose that appellant had promulgated a rule against trespassing upon its property; that the foreman of the plant, whose duty it was to enforce the rule, was cognizant of the fact that the young son of the shipping clerk was present as a trespasser, and that he had in his possession an instrumentality which might cause injury; that the boy did threaten to use the gravelshooter, and instead of being ejected from the premises by the foreman, he was only admonished not to shoot any one with it. Such action upon the part of the foreman was not a discharge of the duty which employer owed the employee to afford him a safe place in which to perforin his duties. So long as the boy remained upon the premises with the knowledge and acquiescence of the foreman, armed as he was with a potentially dangerous instrumentality, the hazards of employment were increased. It was as much the duty of the foreman to remove the hazard of which he was aware as it was his duty to have a defective machine repaired. The fact that the foreman, out of consideration for the father, failed to perform his primary duty to the employee, to afford him protection from a potential injury, was a deliberate injection of an element of danger which did not theretofore exist.

No one will contend that under the provisions of the Compensation Act an employer is an insurer of the safety of the employee; but when an employer knows of a hazard to which the employee is subjected, it is his duty to remove the hazard or in some other way to afford adequate protection to-his employee. The ejection of the boy by the foreman, or even the taking from him of the gravel-shooter, was all that was necessary. That the foreman knew the actual condition is...

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8 cases
  • Hartman v. Retailers & Mfrs. Distribution Marking Serv., Inc.
    • United States
    • U.S. District Court — Western District of Virginia
    • March 8, 2013
    ... ... 78, 366 S.E.2d 73 (1988); and Lynchburg Steam Bakery v. Garrett, 161 Va. 517, 171 S.E. 493 (1933). In R & T ... ...
  • Stillwell v. Lewis Tree Service, Inc.
    • United States
    • Virginia Supreme Court
    • January 24, 2006
    ...Edelwiess Gardens v. Indus. Comm'n, 290 Ill. 459, 125 N.E. 260, 262 (1919)) (emphasis added); see also Lynchburg Steam Bakery, Inc. v. Garrett, 161 Va. 517, 520, 171 S.E. 493, 494 (1933) (indicating that the quoted language from Farmers' was intended to "construe[] the [statutory] language ......
  • Lopez v. Intercept Youth Servs., Inc.
    • United States
    • Virginia Supreme Court
    • August 5, 2021
    ... ... , 235 Va. 78, 86-88, 366 S.E.2d 73 (1988) ; Lynchburg Steam Bakery, Inc. v. Garrett , 161 Va. 517, 519-23, 171 S.E. 493 (1933) ... ...
  • Richmond Newspapers, Inc. v. Hazelwood, 940913
    • United States
    • Virginia Supreme Court
    • April 21, 1995
    ... ... 4 Lynchburg Steam Bakery v. Garrett, 161 Va. 517, 171 S.E. 493 (1933), cited by the ... ...
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