Pioneer Coal Company v. Hardesty

• Decision Date: 21 December 1921
• Docket Number: 11,247
• Citation: 133 N.E. 398,77 Ind.App. 205
• Parties: PIONEER COAL COMPANY v. HARDESTY ET AL
• Court: Indiana Appellate Court

133 N.E. 398

77 Ind.App. 205

PIONEER COAL COMPANY v. HARDESTY ET AL

No. 11,247

Court of Appeals of Indiana

December 21, 1921

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Erma Hardesty and others against the Pioneer Coal Company. From an award for applicants, the defendant appeals.

Reversed.

Elmer E. Stevenson, for appellant.

E. E Perry and J. M. Haley, for appellees.

OPINION

BATMAN, P. J.

This appeal involves an award of compensation in favor of appellees. Appellant challenges the sufficiency of the evidence to sustain the finding that Asa Hardesty, the husband of Erma Hardesty and the father of the remaining appellees, received personal injuries from an accident arising out of his employment by appellant, from which he died. The undisputed evidence establishes the following facts. On January 7, 1921, and for a week prior thereto, Asa Hardesty was in the employ of appellant as a night watchman at its coal yard, which covered a considerable area. There was an office building on the yard, and coal sewer pipe, horse feed, etc., were stored at various places thereon. Near the center of the yard, and about 200 feet from the office building, was a small one story shanty, containing two rooms, which was used by the night watchman as a place of shelter and to warm himself. None of the coal was close to the shanty, as it was piled near the outside of the yard, some of it being as much as 400 or 500 feet therefrom. The front room contained a stove and some benches and chairs, and the rear room was used for keeping repairs for harness. Hardesty was the only person whose duty required him to be at the yard during the night. He was required to feed the horses kept on the premises early in the morning, in order to have them ready for use when the other employes came to work. On the morning of the day named, one of said employes came to the yard early, and not seeing Hardesty, looked about to find him. He entered the shanty and found him in the rear room, unconscious but still alive. He had been seriously injured by being struck on the head, and was covered with dirt and blood. He had evidently been struck with a piece of a singletree, which was found in the shanty with blood on it. This weapon did not belong there, but had been brought in from the outside. The stove was partly tipped over, its pipe was down, the benches were upset, the harness was pulled from the wall, blood was spattered on various objects, giving evidence of a fierce struggle. Hardesty was removed to a hospital where he died two days later, without regaining consciousness.

In determining the question presented by this appeal we must bear in mind, that the burden of establishing each fact necessary to a legal award of compensation rests on the applicants. Haskell, etc., Car Co. v. Brown (1917), 67 Ind.App. 178, 117 N.E. 555; Hege & Co. v Tompkins (1919), 69 Ind.App. 273, 121 N.E. 677. Also that such facts must be based on something more than mere guess, conjecture, surmise or possibility. Swing v. Kokomo, etc., Co. (1919), 75 Ind.App. 124, 125 N.E. 471; St. Louis, etc., Co. v. Industrial Commission (1921), 298 Ill. 272, 131 N.E. 617. In the instant case there is...