Montgomery v. State Indus. Acc. Commission

• Jurisdiction: Oregon
• Parties: Winburn W. MONTGOMERY, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Appellant.
• Citation: 224 Or. 380,356 P.2d 524
• Court: Oregon Supreme Court
• Decision Date: 26 October 1960

Page 524

356 P.2d 524

224 Or. 380

Winburn W. MONTGOMERY, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 7, 1960.

Decided Oct 26, 1960.

George S. Woodworth, Asst. Atty. Gen., for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

James B. Griswold, Portland, for respondent. On the brief were Green, Richardson, Green & Griswold, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and KING, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, State Industrial Accident Commission, from a judgment of the circuit court, based upon findings of fact and conclusions of law, which remanded the plaintiff's claim for compensation to the defendant and ordered it to make an award.

The defendant presents five assignments of error. It argues the second, third, fourth and fifth jointly; therefore, we will state them as one. The first assignment of error submits that the circuit court erred in holding that the defendant commission abused its discretion when it refused to permit the plaintiff to make a tardy filing of his claim. The other four assignments of error contend that the circuit court erred in concluding that an injury which the plaintiff suffered on May 28, 1957, while he was crossing Front avenue in Portland on his way from the plant of Willamette Iron and Steel Company where he worked, constituted 'an accidental injury arising out of and in the course of his employment' within the contemplation of ORS 656.202.

We will now state the facts. May 28, 1957, when the plaintiff suffered an injury he was an employee of Willamette Iron and Steel Company in Portland. The operation is under the Workmen's Compensation Act. Following his injury the plaintiff was hospitalized. No claim was filed with the defendant commission until February 1958. The plaintiff testified that he did not know that he had a claim. The findings of fact entered by the circuit court state:

'That plaintiff had good cause for not filing his original accident claim with the State Industrial Accident Commission within a period of ninety days following the date of his accident, and the State Industrial Accident Commission abused its discretion in refusing to permit the filing of said claim.'

The west side of the property of Willamette Iron and Steel Company, to which we will hereafter refer as the company, faces for 1,000 feet upon N. W. Front avenue which is 42 feet wide. The plant's easterly boundary is the Willamette River. At the time of the plaintiff's injury the plant had between 1,000 and 1,200 employees.

Front avenue is heavily traveled and serves heavy industries such as docks, mills and motor freight terminals which face that thoroughfare. Front avenue constitutes the only access to the company's (Willamette Iron and Steel Company) plant. May 28, 1957, at 4:40 p. m., ten minutes after the plaintiff had checked out of the company's time office at the close of his day's work as a welder, he was undertaking to cross Front avenue westerly to a car of a fellow worker which would take the two to their homes and was then struck by a car traveling south. That injury was the inception of this proceeding.

We have stated that N. W. Front avenue constitutes the only means of access to and egress from the company's premises. The easterly extremity of the thoroughfare (it lays north and south) in the vicinity of the plant lacks a sidewalk in some places and in all places is occupied by parked automobiles that leave no room for a pedestrian. Four gates along Front avenue constitute the entrances to the plant. The company has provided three parking lots within the plant's area for the cars of employees. The largest lot is for those who, like the plaintiff, do mechanical work and the other two are for office personnel. When the number of employees exceeds 1,000, as it did at the time of plaintiff's injury, the employee parking lot is unable to accommodate all, and some are compelled to find space west of Front avenue. Such was the situation faced by the employee with whom the plaintiff rode to work May 28, 1957. He and the plaintiff found a place to park their car west of Front avenue. Those who park there and those who come to the plant upon the bus line or by walking must cross Front avenue on foot.

A few years before the plaintiff's injury the company had persuaded the city of Portland to install a traffic control light at the intersection of Front avenue and Nicolai street. That intersection is near the entrance of the plant which the employees most generally use. A short distance inside that entrance one encounters the employees' parking lot and beyond it is a timekeeper's gate where the workmen check in and out. In order to induce the city to install the traffic light the company paid half of its cost. The company was given a key whereby it could set the traffic light in operation or discontinue operation. The light was operated upon an established cycle through a control box mounted on a utility pole. One of the employees of the company who was known as a guard was entrusted with the key and the operation of the light. He operated the sigal only in the periods when shifts went on or off duty. Findings, which in our belief are warranted by the evidence, state:

'* * * at the time of plaintiff's injury his employer was exercising control over Front Avenue, having placed the controlled signal in operation through use of the control box key provided the Company by the City of Portland, and kept in the Company's possession and control; * * *'

It is reasonable to infer that one who undertakes to cross Front avenue on foot in the area affected by the traffic light when the latter starts the automobiles into the street would find a grave hazard in the cars which were competing with him in their movements.

A few minutes before the accident occurred the plaintiff had checked out at the timekeeper's gate which was some distance east of Front avenue. When he was injured he had gone two-thirds of the distance across Front avenue. At that time virtually all traffic had come to a halt upon the signal given by the traffic control light that we have mentioned. While the plaintiff was making his way between two standing cars he was struck by a third car which was in motion. According to findings which we adopt:

'* * * plaintiff had used the usual and customary exit after having checked out at the timekeeper's gate where he was expected to check out and was using the shortest and most direct route from the company's parking lot exit to the place where the vehicle in which he rode was parked * * *.'

'It is further found as a matter of fact that all employees working at the Company's plant were required either to cross Front Avenue by foot or auto or travel along Front Avenue and into the entrances to the parking areas, and that the employment resulted in the company's employees being exposed to the hazards of Front Street to a greater degree than was the common public, and the crossing of Front Street at the place where plaintiff was injured was a special risk of his employment, Front Avenue being the sole means of ingress and egress to the Company's premises, and further that Front Avenue was in fact at the time of plaintiff's injury an extention of the Company's plant.'

The first assignment of error presents the issue as to whether or not the circuit court was justified in holding that the commission was not warranted in rejecting the plaintiff's claim on the ground of tardy presentation. ORS 656.274 requires claims of this kind to be 'filed within three months of the date upon which the accident occurred' but it provides, 'the commission may, in its discretion, upon a sufficient showing being made, permit the filing of a claim in a nonfatal case within one year of the time the accident occurred.' In declining to award the plaintiff compensation the commission ruled:

'There is insufficient evidence that said workman sustained accidental personal injury within the meaning of the provisions of the Oregon Workmen's Compensation Law.'

Thus, the claim was rejected upon a holding that it lacked merit. The answer filed in the circuit court did not aver late filing.

In Kehoe v. State Industrial Accident Commission, 214 Or. 629, 332 P.2d 91, 94 Mr. Justice Perry, on behalf of the court, stated:

'In this case there can be no question but that the Commission actually permitted a late filing of the claim, for the claim itself shows the date of the accidental injury, the date of presentment of the Commission, and the Commission's rejection on the sole ground that plaintiff failed to produce sufficient evidence that the injury arose in the course of his employment by reason of an accident caused by violent or external means.

* * *

* * *

'In the present case we find no rejection because of late filing until after the Commission had acted upon the claim and rejected it upon its merits.'

The same observation is warranted in this case. The first assignment of error lacks merit.

We will not consider the second, third, fourth and fifth assignments of error. It will be noticed from what has been said that in order to reach his place of employment the plaintiff and others who could not find a place in the company's parking lot were compelled to cross N.W. Front avenue at least twice daily. So also were employees who came on foot or on the bus lines. It seems fair to believe that Front avenue presented substantially more hazards to those who undertook to cross it than did the ordinary city street. Its dangers emanate not only from the volume of traffic that resorts to it but also from the character of the traffic. The company, in recognizing the danger to its employees from the traffic at the employees' gate, persuaded the city to install in front of the gate the traffic control light...