Schweiss v. Indus. Comm'n

• Decision Date: 09 April 1920
• Docket Number: No. 13046.,13046.
• Parties: SCHWEISS v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

292 Ill. 90

126 N.E. 566

SCHWEISS

v.INDUSTRIAL COMMISSION et al.

No. 13046.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 9, 1920.

Error to Circuit Court, Macon County; William K. Whitfield, Judge.

Proceedings under Workmen's Compensation Act by Laura A. Schweiss, administratrix, opposed by the Wabash Railway Company. A finding of the Industrial Commission refusing compensation was approved by the circuit court, which certified that the cause was a proper one for review, and the applicant and Industrial Commission bring error.

Reversed and remanded, with directions.

Fannie A. Bivans, of Decatur, for plaintiff in error.

Hugh W. Housum, of Decatur (N. S. Brown and L. H. Strasser, both of St. Louis, Mo., of counsel), for defendant in error.

CARTER, J.

Henry M. Schweiss, the husband of plaintiff in error and an employé of the Wabash Railway Company at its shops in Decatur, Ill., was struck by a fast train of that company while on his way to work on the morning of October 10, 1917, and died shortly thereafter as the result of the accident. His wife was appointed administratrix of his estate, and made application for compensation against the railway company. The application was referred to an arbitrator, who decided in favor of the applicant. On review the Industrial Commission found that the accident did not arise out of and in the course of the employment, and that therefore no compensation could be allowed. The circuit court of Macon county approved the finding of the Industrial Commission and certified that the cause was one proper to be reviewed by this court, and it has been brought here by writ of error.

The application was heard and the case tried on substantially the following stipulation of facts: That the employer and employé were on October 10, 1917, both under the provisions of the Workmen's Compensation Act of this state (Laws 1913, p. 335); that deceased at the time of his injury was employed by the Wabash Railway Company as a pipe fitter, putting in dry pipes in locomotives; that the place where he was employed in the locomotive shops was approximately 700 feet west of a public road called Geddes lane, in the city of Decatur; that Schweiss' place of residence was two blocks south of the Wabash Railway Company's right of way and two blocks east of Geddes lane, which extended across the railway right of way; that on the morning in question the deceased while on his way to work was struck by a Wabash fast passenger train 765 feet east of Geddes lane; that Schweiss, to get to work on the day of his injury, could have proceeded from his home west two blocks, then north two blocks on a public highway across the tracks, and then upon the north side of the railway right of way 700 feet west to the place of his employment. It was also stipulated that Schweiss' earnings would entitle the applicant to the maximum amount under the act, and it was admitted that the proper notices were given; that he left him surviving and dependent upon him for support his widow and seven children under the age of 16.

The principal question in this case is whether, as Schweiss was injured on his way to work while upon the railway right of way some distance from the public crossing and some distance from the buildings where he worked, his injury under such circumstances arose out of and in the course of his employment. The general rule followed in construing the Workmen's Compensation Act appears to be that a man's employment does not begin until he has reached the place where he has to work or the scene of his duty, and it does not continue after he has left unless the conveyance in which he travels to or leaves the premises is furnished by his employer. Bradbury on Workmen's Compensation (3d Ed.) 468. The controlling factor in determining whether an injury arose out of the employment is whether the employé was within the orbit, area, or sphere of his duty, and it has been usually held that, if an employé is injured on the premises of the employer in going to or from work, he is entitled to compensation for such injuries. 1 Honnold on Workmen's Compensation, § 122; Bradbury on Workmen's Compensation (3d Ed.) 473, and authorities cited. The employment is not limited to the exact moment when the workman reaches the place where he is to begin his work and to the moment when he ceases that work. It includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances surrounding the accident. Boyd on Workmen's Compensation, § 486. An accident befalling the workman on his way to or from work cannot be held to arise out of the employment where he has not yet come within or has left the sphere of his employment, and where an employé, without knowledge of the employer, uses a way other than that provided by him, an accident thereon cannot be said to arise out of the employment. Corpus Juris, treatise on Workmen's Compensation Acts, § 68. Whether an employé 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 be a line beyond which the liability of the employer cannot continue (and this would apply to the beginning of the employé's work as well as the ending), and the question where that line is to be drawn is a question of fact. Elliott on Workmen's Compensation Acts (7th Ed.) 41. The area of an employé's duty may be readily ascertained in some cases, as where the premises are confined to a single building or plant or inclosure, and may be much more difficult of ascertainment in other cases, as, for example, where a railroad company's shops and yards and right of way extend for miles on a main line of track of the railroad and for a considerable distance on switch tracks. In case of railroads it is not sufficient to show that an employé was on the right of way of the railroad company to show that his injury arose out of and in the course of the employment, even though at the time of his injury he was on his way to or coming from his work. Hills v. Blair, 182 Mich. 20, 148 N. W. 243;McInerney v. Buffalo & Susquehanna Railroad Corp., 225 N. Y. 130, 121 N. E. 806.

This court has never had before it for consideration and discussion a case where the circumstances were very similar to those here involved, and a brief review of the decisions of this court bearing somewhat on this question seems necessary.

In Friebel v. Chicago City Railway Co., 280 Ill. 76, 83, 117 N. E. 467, 469, we said:

‘It has been repeatedly held by this court and by courts of last resort in other jurisdictions in similar cases that, where one is injured while merely going to or returning from his employment, the injury is considered to have occurred within the line of the employment’-citing several cases in this and other jurisdictions.

Later, in Fairbank Co. v. Industrial Com., 285 Ill. 11, 120 N. E. 457, in referring to this question and what was said in the case just quoted from, we said (285 Ill. 13,120 N. E. 458):

‘It is true in the Friebel case we said that, where one is injured while merely going to or returning from his employment, the injury is considered to have occurred within the line of the employment. This language was not necessary to a decision of that case and should be modified. There may be circumstances under which an employé in going to and returning from the place of his employment would be held to be in the line of his employment, but those cases would be governed and controlled by their own particular circumstances.’

In Nelson Construction Co. v. Industrial Com., 286 Ill. 632, 637, 122 N. E. 113, 115, the court said:

‘As it appears from the record that the deceased was violating an instruction of his employer, given by the superintendent in charge of the work, when the accident occurred, the injury cannot be said to have arisen out of and in the course of the employment.’

In International Harvester Co. v. Industrial trial Board, 282 Ill. 489, 495, 118 N. E. 711, 713, it was said:

‘It further appears that the trip deceased was making at the time the accident occurred was entirely unnecessary so far as the business of the company was concerned and one which was not authorized or expected by it.’

It appears from the record in that case that the injured person was making a side trip on Sunday by his own personal desire, and not by orders of his employers or with their understanding or approval.

These four cases are the nearest to the case at bar as to facts and reasoning of any of the cases decided by this court. We do not consider any of them decisive or controlling in this case as contended by counsel for defendant in error. A brief reference to some of the cases decided in other jurisdictions may be helpful.

A collier was injured by a gate swinging back on him. The land on both sides of the gate belonged to his employers, and the gate was about 150 yards from the lamp room, to which the collier was first going on his way to work. The passage through the gate was the reasonable mode of access to the premises. It was held that the injury arose out of and in the course of his employment. Hoskins v. Lancaster, 3 B. W. C. C. 476.

In Hills v. Blair, supra, a section hand was killed while returning home from his work at noon for dinner, being struck by a passing train a considerable distance from the place of his work. It was held that the injury did not arise in the course of the employment.

In McInerney v. Buffalo & Susquehanna Railroad Corp., supra, the injured person was a car inspector in one of the yards of the railroad company. He was accustomed to go home for his dinner; his residence not being on the premises of his employers. On week days he took the highway and on Sundays walked on the employer's right of way in order to avoid exposing himself in his working clothes to the general public on the highway. This route on...