Phelps Dodge Corp., Douglas Reduction Works v. Cabarga

• Decision Date: 28 June 1955
• Docket Number: No. 5958,5958
• Citation: 79 Ariz. 148,285 P.2d 605
• Parties: PHELPS DODGE CORPORATION, DOUGLAS REDUCTION WORKS, Petitioner, v. Mrs. Carmen R. CABARGA, Widow, Antonio Cabarga, Elias Cabarga, Isidoro Cabarga, Carmen Teresa Cabarga, Thomas Ramon Cabarga, and Jose Manuel Cabarga, Minor Children, and The Industrial Commission of Arizona, Respondents.
• Court: Arizona Supreme Court

Page 605

285 P.2d 605

79 Ariz. 148

PHELPS DODGE CORPORATION, DOUGLAS REDUCTION WORKS, Petitioner, v. Mrs. Carmen R. CABARGA, Widow, Antonio Cabarga, Elias Cabarga, Isidoro Cabarga, Carmen Teresa Cabarga, Thomas Ramon Cabarga, and Jose Manuel Cabarga, Minor Children, and The Industrial Commission of Arizona, Respondents.

No. 5958.

Supreme Court of Arizona.

June 28, 1955.

Evans, Hull, Kitchel & Jenckes, Denison Kitchel and William H. Rehnquist, Phoenix, for petitioner.

John Pintek, Bisbee, for respondents Cabarga.

John R. Franks, Phoenix, for respondent Industrial Commission of Arizona. Donald J. Morgan, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.

LA PRADE, Chief Justice.

Certiorari to review an award of the Arizona Industrial Commission granting death benefits to the widow and minor children of Ysidoro P. Cabarga, deceased.

The decedent at the time of his death was an employee of the petitioner, Phelps Dodge Corporation, Douglas Reduction Works, at Douglas, Arizona. It is admitted that the injury suffered by deceased and from which he died, arose out of and occurred in the course of the employment, but it is contended by the employer that the injury was not an 'injury by accident'. The findings to this effect are challenged as not being supported by the evidence but contrary thereto and contrary to law.

On March 30, 1953, deceased, while performing his usual and ordinary duties as a slag switchman, suffered a coronary occlusion which resulted almost immediately in his death.

We believe it will be helpful and enlightening to briefly describe the situs and attendant conditions of the employment, as shown by the evidence before the Commission. This factual background, together with the medical findings, is the basis for the Commission's finding that the injury and resulting death was by accident. Our ultimate holding is that the coronary occlusion induced or contributed to by the usual and ordinary work performed was the accident or accidental death.

The ore which defendant-employer processes as its smelter is heated in reverberatory furnaces to a temperature which makes it molten. Liquid slag-the waste portion of the molten ore-is drained out of the furnaces into salg-pots mounted on cars which move on rails. These cars are pulled by an electric locomotive to a slag dump. Each slag train is manned by a slag motorman and a slag switchman.

A slag switchman has three principal duties. He throws switches, acts as a lookout and assists in rerailing cars which frequently are derailed during the journeys to and from the slag dump. The derailments result from molten slag being spilled on the track, hardening, and obstructing subsequent passage of the train. To cope with these derailments, each slag locomotive is equipped with two 'frogs', one suspended on either side. These 'frogs' are wedge-shaped metal bars, approximately two feet long and weighing about fifty pounds apiece. When a derailment occurs it is the routine duty of both the motorman and the switchman to remove the 'frogs' from the side of the motor and to place them in such a position in relation to the track and the derailed wheels that the locomotive by virtue of the position of the two 'frogs' can pull the car back onto the tracks. After the rerailment has been accomplished each crewman picks up a 'frog' and places it back on the side of the locomotive.

Several witnesses testified that derailments are a frequent occurrence in the operation of a slag train. One witness related that he had experienced one derailment each day for four consecutive days.

The pot containing the molten slag is suspended on and between two sets of trucks. A truck is made up of four wheels, two on each side, attached to an axle frame. On the day in question two of the truck wheels became derailed, thus necessitating rerailing.

From the evidence it was made to appear that the lifting, pushing and pulling of the 'frogs' on the ground (slag) so as to get them into place, requires much physical effort and strain. Motorman Dees, in describing the method and physical efforts expended in accomplishing a rerailment, testified as follows:

'Q. What position do you take to put a frog underneath those little railroad cars? A. Well, the frame of the pot goes very low to the ground, I would say approximately 18 inches, or lower than that, and you have to get down after you carry them frogs to whichever track you have to put them under, and you have to get down there between the wheels, or on the outside, you have to get down, and after you get down there you scratch the loose slag out with your gloves, and then you start sliding those frogs, which weigh 50 pounds in place, and when you are down on your knees and lifting that frog, that 50 pounds is pretty heavy, and you are pushing against the slag and you are kind of scraping it back out. It is an awkward position to get into, because of the crouch that you have to get into to push that frog into place.'

Relative to the physical effort and strain involved Motorman Coons stated:

'Q. Now when you are lying down there like that, does it require any strain on you to move the frogs, when you are lying on your back (stomach)? A. I would say it does, because you only have your arms to work with.'

The deceased at the time of his death was sixty-two years of age and apparently healthy and strong. No member of his family was aware of any heart trouble with which he might have been afflicted. He had a work record of practically no absences from work over a span of eighteen years (1 1/2 days per year), and was in especially good spirits on reporting to work at 3 p. m. (death occurred at 5 p. m.).

Shortly preceding the death of Cabarga the slag-pot car in charge of Motorman Coons became derailed. These men went through the regular procedure of rerailing which on the first attempt was unsuccessful, necessitating a second attempt. It was then that Cabarga and Coons again took their respective places under the truck and rearranged and reset the frogs. From this evidence the Commission was entitled to believe that these men had for the second time put forth strenuous energy entailing lifting, pulling and straining, though not unusual or unexpected. After the frogs were set the motorman took his place in the cab of the motor. Cabaraga stood back from the tracks and signalled him to start the motor of the engine which pulled the wheels back to the tracks. Coons then stepped from the cab and walked down one side of the tracks, picked up his frog, carried it back and hung it on the side of the motor. He then took a shovel and proceeded to clear away the slag on the track that had caused the difficulty. When this was accomplished he walked back to the cab and not hearing or seeing Cabarga walked to a position where he could see him. It was at this time that he saw Cabarga slumped to the ground opposite the pin on the motor on which the frog is usually suspended. Cabarga at this time was lying on the ground and apparently in great distress. Coons attempted artificial respiration but soon became aware of the fact that the man was in...