Miller v. State Comp. Comm'r, No. 9499.

CourtSupreme Court of West Virginia
Writing for the CourtKENNA
Citation27 S.E.2d 586
PartiesMILLER. v. STATE COMPENSATION COMMISSIONER et al.
Docket NumberNo. 9499.
Decision Date05 October 1943

27 S.E.2d 586

MILLER.
v.
STATE COMPENSATION COMMISSIONER et al.

No. 9499.

Supreme Court of Appeals of West Virginia.

Oct. 5, 1943.


[27 S.E.2d 586]

Rehearing Denied Dec. 6, 1943.

Syllabus by the Court.

A workman who, after the conclusion of his day's work, was injured upon a roadway not shown to be a plant facility, after having left his employer's plant, in the absence of a showing of a special contract provision or special circumstances, has not suffered a compensable injury.

Appeal from Workmen's Compensation Appeal Board.

Proceedings under the Workmen's Compensation Act by Gray Miller for compensation for death of Luther W. Miller, employee, opposed by the United States Coal & Coke Company, employer. From a decision of the Workmen's Compensation Appeal Board affirming an award made by the Compensation Commissioner, the employer appeals.

Reversed and remanded.

Arthur S. Dayton and Charles Love, both of Charleston, for appellant.

Patrick J. Flanagan, of Welch, for appellees.

KENNA, Judge.

Gray Miller, as the partially dependent father of Luther W. Miller, was awarded compensation due to the accidental death of the latter on December 31, 1941, while employed at the No. 6 operation of United States Coal & Coke Company near Gary, McDowell County, West Virginia. The Workmen's Compensation Appeal Board affirmed the Commissioner's finding, and the employer prosecutes this appeal, contending that the proof before the Commissioner fails to establish that the death of Luther W. Miller was caused by an accident occurring in the course of and resulting from his employment.

Decedent was employed at the tipple of the No. 6 operation of the employer as what is called a "car dropper", his duties being to release the brakes on the empty coal cars above the tipple on the siding upon which the tipple stood so that they would move by gravity under the tipple. After they were loaded, they were again permitted to move by gravity farther down the siding so that the track under the tipple was cleared for more "empties". The side-track upon which the tipple stood extended above and below the tipple and was graded so that when the railroad placed empty cars above the tipple they could move by gravity to and, when loaded, pass the loading point, and could thereafter be held by their brakes on the siding before reaching the main line.

The relative location of the employer's plant units of its operation No. 6, as they appear from the testimony and from a sketch, not drawn to scale, by attorney for claimant, appear to be as follows: The tipple faced the railroad and siding, which run parallel to its face and quite close thereto. Immediately beyond the railroad and running parallel is a creek, and beyond that, a distance of what may be treated as a short city block is the main highway, running parallel to the tipple, the railroad and the creek. On the plat the railroad lies west of the tipple so that the creek

[27 S.E.2d 587]

and main road are beyond in the same direction. There is a connecting road leading to employer's No. 6 operation running east at right angles to the main road, located south of the tipple about the same distance as that between the tipple and the main road. It was on the railroad crossing over this road that Luther Miller was injured. The mine office and the bathhouse maintained for the employees evidently are located between a half to...

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5 practice notes
  • Morris v. State Compensation Com'r, No. 10340
    • United States
    • Supreme Court of West Virginia
    • April 30, 1951
    ...should be employed in applying the provisions of the Workmen's Compensation Act. Miller v. Compensation Com'r, 126 W.Va. 78, 81, 27 S.E.2d 586; Chiericozzi v. Compensation Com'r, 124 W.Va. 213, 217, 19 S.E.2d 590; Lester v. Compensation Com'r, 123 W.Va. 516, 520, 16 S.E.2d 920, 923; Prince ......
  • Bilchak v. State Workmen's Compensation Commissioner, Nos. 12811
    • United States
    • Supreme Court of West Virginia
    • July 1, 1969
    ...is not compensable. Carper v. Workmen's Compensation Commissioner, Supra; Miller v. State Compensation Commissioner et al., 126 W.Va. 78, 27 S.E.2d 586. Certainly, if the deceased men had been killed while using the public highway or while crossing the bridge over the Ohio River on their wa......
  • Maryland Paper Products Co. v. Judson, No. 131
    • United States
    • Court of Appeals of Maryland
    • March 3, 1958
    ...premises.' Cf. Wiles v. American Oil Co., 105 Pa.Super. 282, 161 A. 467, and Miller v. State Compensation Commissioner, 126 W.Va. 78, 27 S.E.2d 586; Watson v. Grimm, 200 Md. 461, 467, 90 A.2d In Maryland several modifications of the general rule have taken place, but this seems to be the fi......
  • Emmel v. State Compensation Director, No. 12479
    • United States
    • Supreme Court of West Virginia
    • November 16, 1965
    ...821; Claytor v. State Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920; Miller v. State Compensation Commissioner, 126 W.Va. 78, 27 S.E.2d 586; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; Machala v. Ott, Compensation Commissioner, 108 W.Va. 391, 151 S.E. ......
  • Request a trial to view additional results
5 cases
  • Morris v. State Compensation Com'r, No. 10340
    • United States
    • Supreme Court of West Virginia
    • April 30, 1951
    ...should be employed in applying the provisions of the Workmen's Compensation Act. Miller v. Compensation Com'r, 126 W.Va. 78, 81, 27 S.E.2d 586; Chiericozzi v. Compensation Com'r, 124 W.Va. 213, 217, 19 S.E.2d 590; Lester v. Compensation Com'r, 123 W.Va. 516, 520, 16 S.E.2d 920, 923; Prince ......
  • Bilchak v. State Workmen's Compensation Commissioner, Nos. 12811
    • United States
    • Supreme Court of West Virginia
    • July 1, 1969
    ...is not compensable. Carper v. Workmen's Compensation Commissioner, Supra; Miller v. State Compensation Commissioner et al., 126 W.Va. 78, 27 S.E.2d 586. Certainly, if the deceased men had been killed while using the public highway or while crossing the bridge over the Ohio River on their wa......
  • Maryland Paper Products Co. v. Judson, No. 131
    • United States
    • Court of Appeals of Maryland
    • March 3, 1958
    ...premises.' Cf. Wiles v. American Oil Co., 105 Pa.Super. 282, 161 A. 467, and Miller v. State Compensation Commissioner, 126 W.Va. 78, 27 S.E.2d 586; Watson v. Grimm, 200 Md. 461, 467, 90 A.2d In Maryland several modifications of the general rule have taken place, but this seems to be the fi......
  • Emmel v. State Compensation Director, No. 12479
    • United States
    • Supreme Court of West Virginia
    • November 16, 1965
    ...821; Claytor v. State Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920; Miller v. State Compensation Commissioner, 126 W.Va. 78, 27 S.E.2d 586; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; Machala v. Ott, Compensation Commissioner, 108 W.Va. 391, 151 S.E. ......
  • Request a trial to view additional results

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