Nw. Iron Co. v. Indus. Comm'n

• Decision Date: 04 May 1915
• Citation: 160 Wis. 633,152 N.W. 416
• Parties: NORTHWESTERN IRON CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

160 Wis. 633

152 N.W. 416

NORTHWESTERN IRON CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

May 4, 1915.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Northwestern Iron Company against the Industrial Commission and another. From a judgment affirming an order of the Commission, plaintiff appeals. Affirmed.

Action under section 2394--19, Stats. Wis., to set aside an award of the Industrial Commission in favor of the defendant Kretkovich for personal injuries suffered by him February 15, 1914, while in the employ of the plaintiff. The plaintiff claims that the Commission acted in excess of its powers because the evidence showed that at the time the accident occurred the claimant was not performing services growing out of or incidental to his employment. The order of the Commission was affirmed by the circuit court and from that judgment the plaintiff appeals. The defendant has an iron briquetting plant at Mayville. The briquettes pass through kilns and are then placed on small dump cars, which run unattended on iron tracks out into the yard about 200 feet, and are there dumped by employés and placed upon a transfer track for return to the kilns. A car comes out about every 15 minutes. On the night of the accident the claimant, Kretkovich, and one Vignovich were doing this work on separate tracks, the former on No. 2 track and the latter on No. 4 track; briquettes drop from the cars in their progress, and the dumpers are required to pick them up. Between the cars the men have about five minutes leisure time on the average. The night was cold; the men started to work that night at 6 o'clock; the accident happened at about half past 10. Both the claimant and Vignovich testified through an interpreter, and their testimony is not easy to understand. The purport of the claimant's story is that he had blocked a car at the end of its run and was picking up briquettes which had fallen from it, when another car came unexpectedly and caught him between the two cars. Vignovich testified that a car came out on No. 2 track, and he and claimant blocked it and sat down in front of it to get warm, the briquettes being hot and the night cold; that after a few minutes he went over to No. 4 track, some 25 feet distant and left Kretkovich lying on the track in front of the car; that 8 or 10 minutes afterward he heard Kretkovich holler and went over and found him between the tracks, caught between the two cars; that he did not know that Kretkovich got hurt until he hollered. The Commission did not determine which story was correct, but held that in either case the company was liable for compensation, because in either case the claimant was in a legal sense...