Norfolk & Wash. Steamboat Co v. Holladay

• Decision Date: 20 November 1939
• Citation: 5 S.E.2d 486
• Court: Virginia Supreme Court
• Parties: NORFOLK & WASHINGTON STEAMBOAT CO. et al. v. HOLLADAY.

5 S.E.2d 486

NORFOLK & WASHINGTON STEAMBOAT CO. et al.

v.HOLLADAY.

Supreme Court of Appeals of Virginia.

Nov. 20, 1939.

GREGORY, J., dissenting.

Appeal from Industrial Commission.

Proceeding under the workmen's compensation law by W. D. Holladay, employee, opposed by the Norfolk & Washington Steamboat Company, employer, and another, insurance carrier. From the Industrial Commission's award of compensation, the employer and insurance carrier appeal.

Award reversed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Venable, Miller, Pilcher & Parsons and W. E. Kyle, all of Norfolk, for appellants. Henry Bowden, of Norfolk, for appellee.

EGGLESTON, Justice.

W. D. Holladay, an employee of the Norfolk & Washington Steamboat Company, while walking along a trestle of the Chesapeake & Ohio Railway Company, between Old Point and Phoebus, was struck and badly injured by a passing train. The Industrial Commission found that the claimant had been injured by an accident arising out of and in the course of his employment and awarded compensation. From this award the present appeal has been taken by the employer and its insurance carrier.

The record discloses that the claimant, aged thirty-one, was on the date of the accident, November 5, 1938, employed as a passenger representative and tour conductor. On the evening preceding the accident he left Washington, D. C. on one of his employer's steamers in charge of a number of passengers who were on a tour to Norfolk, Williamsburg, Yorktown, Old Point, and other places of interest in that vicinity. The steamer arrived at Norfolk at 8 o'clock in the morning, when the passengers boarded buses and under Holla-day's guidance and supervision were taken to the various scheduled points of interest. They arrived at the Chamberlin Hotel, at Old Point, shortly before 6 P. M., where the party was to have dinner and was to board the steamer which was due to leave the near-by wharf about 7:45 P. M. for Washington.

It was a part of Holladay's duties to look after the wants and comforts of the members of his party and to make their trip as pleasant as possible. While the party was at dinner, between 6 and 6:30 P. M., certain of the members requested Holladay to procure for them some whiskey for consumption on the boat. To comply with this request it was necessary that he go to the nearest State liquor store which was located at Phoebus, more than a mile away.

Holladay first looked for a taxicab at the hotel entrance but found none there. Continuing his search for a cab he proceeded to the Chesapeake Ferry wharf which is near the Chesapeake & Ohio Railway station and two or three blocks from the hotel. He does not recall anything which happened from the time he left the hotel until he was rescued by two passing soldiers from the water under the single-track railway trestle about 7:20 P. M. His right leg had been crushed by a passing train.

The trestle extends over the water a distance of about 750 yards from the railway station to a point where it crosses the highway leading from Old Point to Phoebus. Holladay had traversed a littlemore than one-half of this distance before being struck by the train.

He does not remember arriving at the Chesapeake Ferry wharf or at the railway station, or why or how he came to be on the trestle. Nor does he remember being struck by the train. According to the medical testimony this loss of memory is readily attributable to the shock of his injury. Viewing the situation retrospectively, Hol-laday testified that he "supposed" or "might have figured it was a short cut." However, the map found in the record shows that the shortest route from the hotel to Phoebus was along the road and not across the trestle.

While there is evidence that Holladay had taken a drink before leaving the hotel, the overwhelming evidence is that he was not intoxicated but was entirely normal, and the Commission so found.

The question we have to decide is whether the Commission was justified in finding from these facts and circumstances that the accident arose out of and in the course of Holladay's employment.

The appellants concede that the accident happened during the time when the employee was on duty. But they earnestly insist that there was no causal connection between the conditions under which Holla-day's work was required to be done and the resulting injury; that the accident happened at a place where the employee's duties did not reasonably require him to be and where he had no right to be, and from a risk or hazard which was not reasonably within the contemplation of his contract of employment. Hence, they say, the accident did not arise out of and in the course of the employment.

On the other hand, the appellee contends, and the Commission found, that this was a situation in which the employee was injured while performing his duties in a negligent manner, and that such negligence did not bar his right to compensation.

"* * * whether, under a given state of facts and circumstances, an employee has suffered an accident, within the meaning of the Workmen's Compensation Act, is a mixed question of law and fact which is properly reviewable by this court." Clinchfield Carbocoal Corp. v. Kiser, 139 Va. 451, 456, 124 S.E. 271, 273.

While the words of our statute (Code, § 1887(2) (d) "arising out of and in the course of the employment" should receive a liberal construction (Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684; Cohen v. Cohen's Department Store, 171 Va. 106, 109, 110, 198 S.E. 476), the burden is upon the claimant to prove by a preponderance of the evidence that the accident arose out of and in the course of his employment. Crews v. Moseley Bros., 148 Va. 125, 128, 138 S.E. 494; Campbell & Co. v. Messenger, 171 Va. 374, 377, 199 S.E. 511; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 120 A.L.R. 677.

In Bradshaw v. Aronovitch, supra, 170 Va. at page 335, 196 S.E. at page 686, we said:

"An accident occurs 'in the course of the employment' when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto. 71 C.J. p. 659, § 404; Lasear v. Anderson, 99 Ind. App. 428, 192 N.E. 762, 765.

"In In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, a leading case, it is said that an injury 'arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'"

See also, Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 103, 131 S.E. 240, 241; Cohenv. Cohen's Department Store, 171 Va. 106, 110, 198 S.E. 476.

Thus it is seen that in order for an injury to be compensable, as arising out of and in the course of the employment, something more is necessary than the fact that the accident occurred during the period of the employment and while the employee was about his master's business. It must also be shown that the injury occurred at a place where from the nature of his work the employee was reasonably expected to be.

In White Star Motor Coach Lines v. Industrial Commission, 336 111. 117, 168 N. E. 113, 115, it is said: "Where an employee chooses to go to a dangerous place where his employment does not necessarily carry him, and where he incurs a danger of his own choosing and one altogether outside any reasonable requirement of his employment, it cannot be said that such risk was an incident to his employment. Terminal Railroad Ass'n v. Industrial Commission, 309 111. 203, 140 N.E. 827. For an accident to arise out of the employment the act of the employee must be reasonably incidental to his employment. The employee must not unnecessarily increase the risk of injury to himself beyond that...