Reed v. Brown

• Decision Date: 13 August 1958
• Docket Number: No. 19119,19119
• Citation: 129 Ind.App. 75,152 N.E.2d 257
• Parties: Ada M. REED, Meredith Reed, Partners Doing Business as Reed Orchards, Appellants, v. Harriett M. BROWN, Rita Brown, a Minor, by Harriett M. Brown, Her Legal Guardian, Mary Alice Brown, a Minor, by Harriett M. Brown, Her Next Friend, Appellees.
• Court: Indiana Appellate Court

Page 257

152 N.E.2d 257

129 Ind.App. 75

Ada M. REED, Meredith Reed, Partners Doing Business as Reed Orchards, Appellants, v. Harriett M. BROWN, Rita Brown, a Minor, by Harriett M Brown, Her Legal Guardian, Mary Alice Brown, a Minor, by Harriett M. Brown, Her Next Friend, Appellees.

No. 19119.

Appellate Court of Indiana, In Banc.

Aug. 13, 1958.

Rehearing Denied Sept. 24, 1958.

Transfer Denied Nov. 21, 1958.

Gray & Waddle, Carl M. Gray, Petersburg, for appellants.

S. Hugh Dillin, Petersburg, Dillin & Dillin, Petersburg, of counsel, for appellees.

KELLEY, Judge.

In an action by appellees for compensatory benefits as dependents of Harshall A. Brown, deceased, the Industrial Board found that said decedent was in the employ of appellants on September 29, 1950 and that he died as the proximate result of personal injuries received by him on said date by reason of an accident arising out of and in the course of his employment with appellants. An award favorable to appellees was entered on the finding.

The whole controversy develops upon appellants' contention that decedent's fatal accident did not arise out of or in the course of his employment. The parties entered into a stipulation of agreed facts, and no evidence, additional thereto, other than a plat showing locations of the highways, the railroad, and appellants' sheds, which was made a part of the stipulation, was offered by either side.

Insofar as pertinent to the present inquiry, the stipulation establishes the following facts, in substance:

Appellants, on the aforesaid date, conducted as partners, the business of growing, packing and marketing apples and other fruit under the name of Reed Orchards. Said orchards are located approximately one mile east of Vincannes, Indiana, and are divided, the north part from the south part, by the east-west U. S. Highway No. 50 and the tracks of the Baltimore and Ohio Railroad which run generally east and west parallel with and immediately adjacent to said highway along the north side thereof. Appellants 'owned the real estate upon which said Railroad tracks are situated, and the real estate on both sides of said tracks, but subject to the operating easement' of said railroad company. Appellants had no control over the manner in which said railroad company operated its trains over said easement and had no control over the real estate 'described in said easement.' (No description of the easement is given in the stipulation.)

The packing shed and apple shed of appellants are located on the area of appellants' land which lies north of said railroad tracks and Highway 50. Along the north side of said area of land, a highway, known as the Old Wheatland Road, extends generally east and west in an irregular fashion, and the west end of the road turns south, at a point a mile or so west of appellants' land, and crosses said railroad tracks into said Highway 50. Electric flasher signals are installed at said crossing, indicating the approach of trains thereto.

Access to said packing and apple sheds from said Old Wheatland road on the north and from said U. S. Highway No. 50 on the south is provided by a private driveway of appellants extending north and south and connecting said highways. Entrance to the private driveway from either highway is at the point of its intersection with the highway. Immediately north of its intersection with said Highway 50, said private driveway is crossed by the main tracks of said railroad, so that in proceeding north on said private driveway from said Highway 50 to said sheds, it is necessary to go over and across said tracks. The decedent 'had the right, in the course of his employment to elect and select whichever route he cared to travel to and from his work.'

Employees of appellants' orchards worked nine hours a day, six days a week. Working hours were from 7:00 A.M. to 12 Noon, and from 1:00 P.M. to 5:00 P.M. Employees were not paid for the lunch period from 12:00 Noon to 1:00 P.M., and 'could eat lunch either on or off the premises, at their own pleasure.' (There is no stipulation that appellants provided or made food available or furnished facilities therefor.) 'Said employees did not to or perform any work or labor for and on behalf of defendants (appellants) in the course and scope of their employment during lunch hour, but were wholly on their own to do whatever they elected to do during such period.'

On said September 29, 1950, decedent worked for appellants as a Checker, his duties being to check the bushels or baskets picked by each picker, tag the basket of picked apples, and punch the tag so as to indicate the picker thereof. On said date, decedent parked his car at said packing shed and proceeded from there to check the pickers during the forenoon. 'At 12:00 o'clock noon he elected to return to his home in Vincennes, Indiana, for his lunch, and did so.'

Decedent was to have reported back to said packing shed at 1:00 P.M., for his afternoon's work. He left his home at approximately 12:45 P.M., on said date, driving an automobile, and proceeded east to the city limits of Vincennes and from thence east on said U. S. Highway 50 to its intersection with said driveway of appellants, turned off said highway onto said driveway and approached the point where the driveway is crossed by said railroad tracks.

At said time and place a passenger train of said railroad company was approaching said crossing from the east. Decedent operated his automobile onto said tracks in front of said train, and was then and there struck thereby, sustaining injuries which instantly caused his death. (The exact or approximate time of said accident is not stipulated. It appears, however, that it occurred after 12:45 P.M., and before 1:00 o'clock P.M.)

At the time of said fatal accident, decedent was enroute to report back to said packing shed for his afternoon work. From the time decedent left the orchards at 12:00 o'clock noon, on said day, until the time of the accident, he was not doing or performing any work, labor or services for appellants. His employment was to have been resumed when he reported back to the packing shed for duty at 1:00 P.M.

Appellants' most vigorous argument seems to be, in effect, that decedent was not compelled by them to use or travel the route he selected in order to reach the premises where his work was to be performed; that he could have safely crossed the tracks at the crossing where the flasher signals were installed and proceeded to the private driveway and working premises by way of the Old Wheatland road. That, therefore, decedent created the hazard and it was not incidental to his employment. Further, that there is no evidence that the route decedent elected to follow in returning to his employment was the 'ordinary' route used by decedent and other employees as ingress and egress to the packing shed or orchard.

The real gist of and point for observance in appellants' contention is not that decedent created his own hazard by making the wrong selection of routes to the place of employment but that as decedent was not required to use or follow the particular route taken by him, there being afforded another and allegedly safer route, he was not, therefore, under the circumstances disclosed by the stipulation, 'on the premises' of appellants at the time of suffering his fatal injuries. Accepting such interpretation of the basic proposal made by appellants, the general question, originally stated, seems resolved into a more precise and specific ground of inquiry. In point of time, was decedent, when the accident occurred, sufficiently close in distance to the locale of his employment and within such a reasonable period of time before the designated hour of his work commencement as to bring the accident within 'the course of (his) employment'? And, under the stipulated facts, was the hazard encountered by decedent while on appellants' private driveway deprived of reasonable incidentalism to his employment so that the accident and consequent injuries to decedent did not arise 'out of' his employment, either because of appellants' lack of control over the real estate described in the railroad easement or because decedent was not required by appellants or the conditions of his employment, to use such driveway over the railroad tracks as a way of ingress and egress to and from the place of his employment?

'One of the most difficult problems met with in the enforcement of the Workmen's Compensation Act (Acts 1915, c. 106) is the determination of the question whether an injury arose out of and in the course of the employment. The employment is not limited to the exact moment when the workman reaches the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Whether an employee, in going to or returning from the place of his employment is in the line of his employment, is governed and controlled by the particular circumstances and facts of each case. There must, however, be a line beyond which the liability of the employer cannot continue. Where that line is to be drawn is usually a question of fact. * * *' (Our italics.) Indian Creek Coal & Mining Co. v. Wehr, 1920, 74 Ind.App. 141, 151, 127 N.E. 202, on rehearing 128 N.E. 765, 766; Jeffries v. Pitman-Moore Company, 1925, 83 Ind.App. 159, 161, 147 N.E. 919; Small, Workmen's Compensation Law, § 7.7, p. 170; Horovitz, Modern Trends in Workmen's Compensation, 21 I.L.J., pp. 551, 552, 553.

The latter author, in his said treatise, on page 551, et seq. of 21 I.L.J., says:

'Injuries going to or from work have caused many judicial upheavals. * * * 'In the course of' deals mainly with the element of time and space, or 'time, place and circumstances.'

'Thus, if the injury occurred fifteen minutes before or after working...