Payne v. Indus. Comm'n

Decision Date21 December 1920
Docket NumberNo. 13481.,13481.
Citation295 Ill. 388,129 N.E. 122
PartiesPAYNE, Director General of Railroads, v. INDUSTRIAL COMMISSION et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Vermilion County; Augustus A. Partlow, Judge.

Application under Workmen's Compensation Act (Hurd's Rev. St. 1919, c. 48, §§ 126-152i) by Florence E. Eagleson, as executrix of Frederick Eagleson, deceased, for compensation, opposed by John Barton Payne, Director General of Railroads, in charge of the Chicago & Eastern Illinois Railroad Company. An award was allowed by the arbitrator and later by the Industrial Commission, but was set aside by the circuit court on certiorari, and the executrix brings error.

Judgment affirmed.

O. M. Jones and C. W. Fleming, both of Danville (W. T. Henderson, of Danville, of counsel), for plaintiff in error.

H. M. Steely and H. M. Steely, Jr., both of Danville, for defendant in error.

CARTER, J.

Frederick Eagleson, a boy 17 years old, died as a result of injuries received while in the employ of the Chicago & Eastern Illinois Railroad Company in its shops at Danville, Ill., in January, 1919. Application was made to the Industrial Commission of Illinois for compensation, which was allowed by the arbitrator and later by the Industrial Commission. On review by writ of certiorari in the circuit court the award of the commission was set aside, and the cause has been brought to this court by writ of error.

The deceased worked in the oil room, so called, of the Chicago & Eastern Illinois shops at Danville for about a month in March and April, 1918, when he was promoted and transferred to what is known as the grease room. The evidence shows that the oil room was about 40x40 feet in size, and the foreman of the oil and grease department sat in the southwest corner of this oil room. Near the northeast corner of this room there was a door in the east wall opening into the grease room, about 12x15 feet in size, and along the south wall of this room were pipes that carried compressed air, with valves and nozzles for attaching hose, and along and on this south wall were also hopper machines for pressing hard grease. The machine at which Eagleson was employed at the time of his injury pressed the grease into flat cakes for use in lubricating the journals of locmotives. There was another machine in the room that pressed the hard grease into round sticks, which were then cut into two-inch sections, for use in the rod cups on the locomotives. These various machines, when filled and closed, were operated by compressed air attached at the tops, and there appears to be nothing dangerous or arduous about this work, the operator simply watching the machines and cutting off the cakes and sticks to the right length. On the north wall of this grease room was a locker, in which was kept a long air hose, which, when needed, was taken out and one end attached to an air nozzle in the grease room and the other end to one of the receptacles in the oil room, in order to transfer oil or grease by air pressure from one receptacle to another. This hose, when not in use, was not allowed to lie around on the floor or left attachedto the air nozzle, but was detached and replaced in the locker or cabinet. The evidence shows that on the morning of April 22, 1918, three boys, two aged 16 and one 15, who were employed in the oil room, desiring to transfer some oil from one receptacle to another in the oil room, went into the grease room, and one of the boys, Nulken, took the hose from the cabinet on the wall, and, according to the usual procedure, attached it to an air nozzle on the south wall, and then put a new nozzle into the further end of the hose. About this time they began among themselves to ‘skylark’ with the hose, shooting compressed air at each other. The evidence does not show whether the door between the grease room and the oil room was open or closed, but it does show that this hose was attached behind the door, and that from where the foreman sat at his desk in the corner of the oil room he could not see what was going on in the grease room. While playing with the air hose one of the boys would hold the nozzle and another would stand at the valve on the wall and turn on the air, and then they would shoot one of the other boys with the compressed air. When the accident happened Nulken was holding the nozzle at the outer end of the hose and the Elwell boy was at the valve turning the air off or on. The testimony is that the end of the air hose was held six or seven inches from the body or anus of Eagleson, the deceased, and Elwell turned on the air when Eagleson shouted, ‘I am blowed up!’ and fell to the floor. He was taken to the first-aid station at the shops, and later to the hospital, where he died. The testimony of these boys is that they had played around the apparatus at other times, shooting one another with compressed air in the same way, and some of the boys testified that on the day in question the Eagleson boy had been participating in the sport and had helped to shoot the other boys with the air, although one of the boys testified that Eagleson had not taken part in the skylarking that ended in the accident; that just before the accident Eagleson had turned around facing towards the machine, to start his work. The evidence does not show clearly which one of the boys started the play and is not entirely in harmony as to whether Eagleson himself took any part in it.

There can be no question that the accident occurred during the course of the employment of the deceased. The only question is whether it arose out of the employment. While this court has never been required to pass on the question whether an air hose is a dangerous appliance, that question has been passed on in other jurisdictions in cases similar to this where the injury arose in the course of play, and has been held in some cases not to have arisen out of the employment and not to have been reasonably incident thereto, and in others to have arisen out of the employment. In the case of In re Loper, 64 Ind. App. 571, 116 N. E. 324, where the injury arose in a similar manner from playing with compressed air, it was shown that the employer knew of the custom and such play was permitted. It was held that the employer was liable, largely on the ground that playing with the air, as was done at the time of the accident, had become a...

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19 cases
  • Hill v. Liberty Motor & Eng'g Corp..
    • United States
    • Maryland Court of Appeals
    • January 24, 1946
    ...for injuries sustained by an employee by reason of a harmful prank of a co-employee in throwing him down. In Payne v. Industrial Commission, 295 Ill. 388, 129 N.E.122, 13 A.L.R. 518, compensation was denied where boys, while using a machine operated by compressed air, and while playing with......
  • Hill v. Liberty Motor & Engineering Corp.
    • United States
    • Maryland Court of Appeals
    • January 18, 1946
    ... ... co-employee in throwing him down. In Payne v. Industrial ... Commission, 295 Ill. 388, 129 N.E.122, 13 A.L.R. 518, ... compensation was ... ...
  • Crane v. State Farm Fire & Cas. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • January 27, 1971
    ...(1933) 354 Ill. 151, 187 N.E. 916; Barden v. Archer Daniels Midland Co. (1933) 187 Minn. 600, 246 N.W. 254; Payne v. Industrial Commission (1920) 295 Ill. 388, 129 N.E. 122; Federal Rubber Mfg. Co. v. Havolic (1916) 162 Wis. 341, 156 N.W. 143; In re Loper (1917) 64 Ind.App. 571, 116 N.E. 32......
  • Orsini v. Industrial Com'n of Illinois
    • United States
    • United States Appellate Court of Illinois
    • April 9, 1986
    ...where the question was whether exchange of work by employees was acquiesced in by the employer--award granted; Payne v. Industrial Com. (1920), 295 Ill. 388, 129 N.E. 122, where the question was whether horseplay causing death was known to the employer--award denied; Bradway v. Industrial C......
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