Nw. Fuel Co. v. Swanson

• Decision Date: 09 October 1928
• Citation: 221 N.W. 396,197 Wis. 48
• Parties: NORTHWESTERN FUEL CO. v. SWANSON ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 48

221 N.W. 396

NORTHWESTERN FUEL CO.

v.SWANSON ET AL.

Supreme Court of Wisconsin.

Oct. 9, 1928.

Appeal from a judgment of the Circuit Court for Dane County; A. O. Hoppmann, Judge.Affirmed.

An award of compensation was made January 11, 1927, by defendantIndustrial Commission to defendantPeter Swanson for an injury he received October 31, 1925, and against the plaintiff, his then employer.The latter brought this action of review January 25, 1927, and appeals from the judgment February 3, 1928, confirming the award.

Plaintiff owns water frontage at Superior.Hill avenue, a public highway, approaches from the south with a width of 100 feet; a short distance below the point of the accident it turns northeasterly and runs into plaintiff's property, and is 50 feet wide after the turn.This extension is crossed by several railroad tracks, crossing one of which Swanson, riding his bicycle on his way home after work, was struck by a train of the Terminal Company, which used this track for the traffic of another coal company.The plaintiff with its buildings had encroached entirely across the upper end of Hill avenue, and cinders used to keep it in condition had from time to time been furnished by plaintiff.It was used to some small extent by those visiting vessels in adjacent slips, but very largely by plaintiff in its business and by its workmen, including Swanson, in going to and from work.The place of the collision was opposite a small piece of property owned by some one else, and it was less than 50 feet distant from the nearest land owned by plaintiff.Plaintiff, however, owned some vacant land on both sides of this extension of Hill avenue and below the point of collision.Powell & Sprowls, of Superior, and A. E. Boyesen, of St. Paul, Minn., for appellant.

John W. Reynolds, Atty. Gen., Mortimer Levitan and Frank W. Kuehl, Asst. Attys.Gen., and Hile & Dahl, of Superior, for respondents.

ESCHWEILER, J.

Appellant's attack upon the award of compensation by the Industrial Commission to Swanson is that their finding in effect is that Swanson was at the time on the premises of his employer, the plaintiff.The statutory provision involved, section 102.03 (2), reads:

“* * * Every employé going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment.”

[1] The evidence before the Industrial Commission...