Lynchburg Steam Bakery Inc v. Garrett
Decision Date | 16 November 1933 |
Citation | 171 S.E. 493 |
Parties | LYNCHBURG STEAM BAKERY, Inc. v. GARRETT. |
Court | Virginia 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.
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 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:
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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