Murphy v. Wells-Lamont-Smith Corporation

• Citation: 155 S.W.2d 284
• Decision Date: 04 November 1941
• Docket Number: No. 25836.,25836.
• Court: Missouri Court of Appeals
• Parties: MURPHY v. WELLS-LAMONT-SMITH CORPORATION et al.

155 S.W.2d 284

MURPHY v. WELLS-LAMONT-SMITH CORPORATION et al.

No. 25836.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

As Modified on Denial of Rehearing November 18, 1941.

Appeal from Circuit Court, Lincoln County, Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Proceedings under the Workmen's Compensation Act by Ruby Murphy, employee, opposed by Wells-Lamont-Smith Corporation, employer, and Liberty Mutual Insurance Company, insurer. From a judgment reversing an award of the Workmen's Compensation Commission denying compensation and remanding the cause to the commission, the employer and insurer appeal.

Affirmed.

John F. Evans, of St. Louis, for appellants.

Jonathan E. Clarke, of Elsberry, and Williams & Huston, of Troy, for respondent.

McCULLEN, Judge.

This is a proceeding under the Workmen's Compensation Law wherein Ruby Murphy, employee, seeks to recover compensation from appellants, employer and insurer, for injuries sustained by her on May 22, 1939.

The employee's claim for compensation was filed with the Workmen's Compensation Commission in due time, after which the employer and insurer filed an answer denying that the employee's injuries arose out of and in the course of her employment. On a hearing before Referee Edward C. Lynch, an award was made of no compensation, the referee finding that the disability complained of was not the result of an accident arising out of and in the course of the employment. Said award and finding of the referee were affirmed on review by the full commission, whereupon the employee appealed to the Circuit Court of Lincoln County, Missouri. After a hearing, said court rendered a judgment reversing the award of the Workmen's Compensation Commission and remanding the cause to said commission. From the judgment of the circuit court the employer and insurer duly appealed to this court.

In their briefs in this court the parties agree that "the main facts in the case are undisputed." It appears from the evidence that the Wells-Lamont-Smith Corporation, hereinafter referred to as employer, operated a glove factory in Elsberry, Lincoln County, Missouri; that Mrs. Ruby Murphy, the employee, had worked for the employer at said factory as an operator of a sewing machine for a period of about ten years prior to the time of the accident involved herein.

The evidence showed that the main building of the factory was a large three story ell-shaped structure fronting on the north side of Lincoln Street in Elsberry; that the eastern edge of the premises paralleled another public highway; that within the ell of the building was a shipping yard where trucks drove in to load freight; that across said yard was a cement or concrete walk leading from the public sidewalk to the men's entrance to the factory; that the women employees entered the factory through the main doorway near the eastern edge of the three story building. Extending along the entire block on the north side of Lincoln Street in front of and immediately adjacent to the employer's premises was an open public cement or concrete sidewalk used almost exclusively by the factory employees of the employer to go to and from their work, but also used occasionally by other members of the public. There were no restrictions on the public's use of the sidewalk. At a point midway of the premises, the public sidewalk mentioned had a reinforced section about twelve feet long with beveled edges, which was used as a drive-over or drive-in from Lincoln Street into the factory shipping yard. The evidence shows that, in order to make it easy for trucks passing over the reinforced section of the sidewalk from the street into the shipping yard, and vice versa, the employer had tamped gravel on both edges of the sidewalk. At the time in question, Lincoln Street was an unpaved street running east and west. It intersected Second Street at a point one half a block west of the employer's factory. The factory was in a part of the town where there were no stores. The premises of the factory fronted on and abutted the north side of Lincoln Street on the eastern half of the block. The sidewalk on the north side of Lincoln Street was the only sidewalk on that block, there being no improved sidewalk or walkway on the south side of said street.

The evidence showed that, on the morning of May 22, 1939, Mrs. Murphy left her home at her usual time to go to the factory to work. Her home was located about a block and one half west and four and one half blocks south of the factory premises. She followed her usual course in going to the factory, and reached the sidewalk on the north side of Lincoln Street in front of the factory, it being her intention to follow said sidewalk eastwardly to the women's entrance to the factory. She walked on said sidewalk and continued in an easterly direction past the walk leading to the men employees' entrance and along the part of the sidewalk abutting the shipping yard and the front of the factory, until she reached a point about the middle of the shipping yard, which was about fifty feet west of the women's entrance where the reinforced portion of the sidewalk, with beveled edges heretofore referred to, constituted the driveway across the sidewalk. That was the only driveway on the premises. When Mrs. Murphy reached a point about two feet west of the east edge of the reinforced part of the sidewalk, referred to as the "drive-in", she heard someone shout, and turning saw a truck backing toward her. In an attempt to avoid the truck, she stepped about two feet north of the sidewalk and into the shipping yard, at which point she was struck by the truck and was pushed several feet to the north further into the shipping yard where she was knocked down and run over by the truck.

It is undisputed that the place where Mrs. Murphy was struck, knocked down and run over was on the premises of the employer within the shipping yard. The truck was owned and operated by an independent trucker who occasionally hauled small loads of gloves from the factory for the employer. It is conceded that the truck was neither owned nor controlled by the employer; and that it was the intention of the operator and owner of the truck to back into the loading yard to solicit or pick up freight from the employer.

Since no question is raised herein as to Mrs. Murphy's injuries, it is sufficient to say that she sustained a head injury and general bruises over her body; that her left leg was almost severed above the ankle; that she spent many months in the hospital and at the time of the hearing, April 25, 1940, was still totally disabled.

The evidence further showed that the accident happened about 7:15 a. m., on the date mentioned; that Mrs. Murphy had been an employee of the factory for about ten years; that she operated a sewing machine on the second floor of the main building; that all of her work for the employer was confined to that floor; that the regular time for the commencement of work was 7:30 a. m., but that it was the custom of Mrs. Murphy and other employees to arrive at their work place a little before starting time for the purpose of cleaning and oiling their machines and getting them ready for the day's work. The evidence on behalf of the employer was to the effect that the employees were not required to have their machines ready before 7:30 a. m. There was further testimony on behalf of the employee that a general maintenance man employed by the employer swept the sidewalk in question and kept it clean from the women's entrance at the east end of the premises to the alley at the west end thereof; that he also swept the walk leading to the men's entrance. The maintenance man also testified that in the winter time, when there was ice on the sidewalk and on the walk leading to the men's entrance, he put cinders and salt on both; that he also cleaned snow off both of said walks.

The evidence further showed that the route taken by Mrs. Murphy on the morning in question was the regular and usual route that she had used for many years in going to and from her work; that the sidewalk in question was the most direct route and the only practicable way of ingress and egress to and from the factory.

The employer and insurer contend that the circuit court erred in reversing the final award of the Workmen's Compensation Commission and in declaring as a matter of law that there was not sufficient competent evidence in the record to warrant the making of the award made by the commission, and in finding as a matter of law that the employee's injuries were the result of an accident arising out of and in the course of her employment. In support of their contention, it is argued that, while Mrs. Murphy was actually injured on the premises of the employer, such fact does not conclusively show that her injuries arose out of and in the course of her employment; that, while in the emergency arising from the backing of the truck, the employee naturally jumped to the left and into the yard, the accident nevertheless arose from the employee's use of the public sidewalk, and that such injury did not arise out of and in the course of the employment.

The employer and insurer cite a large number of cases in support of their views which deal with various situations involving injuries to employees on their way to and from their work, wherein it was held, on the particular facts in each case, that the injury did not arise out of and in the course of the employment. On the other hand, the employee cites a large number of cases holding, on the facts therein, that the injuries did arise out of and in the course of the employment. All parties agree that no Missouri decisions are directly in point with the case at bar.

The number of opinions of appellate courts of this and other states discussing the Workmen's Compensation Law has become so large that the bench, the bar, and the public should not be burdened with unnecessary...