State ex rel. Nelson v. Dist. Court

• Decision Date: 02 November 1917
• Docket Number: No. 20662.,20662.
• Citation: 164 N.W. 917,138 Minn. 260
• Parties: STATE ex rel. NELSON v. DISTRICT COURT, RAMSEY COUNTY, et al.
• Court: Minnesota Supreme Court

138 Minn. 260

164 N.W. 917

STATE ex rel. NELSON

v.DISTRICT COURT, RAMSEY COUNTY, et al.

No. 20662.

Supreme Court of Minnesota.

Nov. 2, 1917.

Certiorari in Supreme Court by the State, on relation of C. N. Nelson, against the District Court, Ramsey County, and others, to review a judgment denying relator compensation under the Workmen's Compensation Act. Judgment reversed.

Syllabus by the Court

The evidence is held to sustain a finding that the injury to the relator, a janitor, who was frozen in severely cold weather while shoveling snow from the sidewalks about a building, was an accidental injury ‘arising out of his employment’ within the Workmen's Compensation Act (Gen. St. 1913, c. 84a). John I. Levin, of St. Paul, for relator.

E. A. Prendergast, of Minneapolis, for respondents.

DIBELL, C.

Certiorari to the Ramsey county district court to review a judgment denying the relator compensation under the workmen's compensation act.

The relator was employed by the Northwestern Telephone Exchange Company. While so employed he froze his big toe and the freezing resulted in the amputation of his leg. The injury was sustained in the course of his employment. The court found that the freezing was not an accident. It found that it arose out of his employment. Since the trial we have held that freezing is an accident. State ex rel. Virginia & Rainy Lake Co. v. District Court, 164 N. W. 585. If the finding that the freezing arose out of his employment within the meaning of the Compensation Act (G. S. 1913, § 8195) is sustained, the relator should have compensation and the judgment should be reversed; otherwise, he should not, and there should be an affirmance.

The relator was a janitor employed by the telephone company at its Midway Exchange in Merriam Park. His duties were the usual ones of a janitor. Using his language, he was ‘required to keep the building clean, keep the fire going, shovel the snow off the sidewalk whatever time it was necessary-all such things that belong to a janitor to do.’ On February 22, 1916, he went to the building about 5 o'clock in the morning, attended to the fires, did some other little things about the building, and then started to shovel the snow from the sidewalks. There had been a heavy fall the night before. He had to shovel a 50-foot front and 140 feet back to the alley. The snow was 2 or 2 1/2 feet deep. The weather was very cold. The work of shoveling required perhaps 1 1/2 hours. While doing this work he went from time to time into the building to see to the fires and could go at any time he chose. These are the important facts.

In State ex rel. Virginia & Rainy Lake Co. v. District Court, 164 N. W. 585, we held that the finding of the court that the freezing there involved arose out of the employment was sustained by the evidence. The workman was employed in the northern woods swamping, was several miles from camp, had no facilities for warming or protecting himself, and was peculiarly exposed to severely cold weather. The question whether the trial court's finding was sustained was not difficult. The one presented by the record before us is. The direct authorities upholding findings in freezing cases are few. We cite those called to our attention. McManaman's Case, 224 Mass. 554, 113 N. E. 287 (stevedore unloading a steamer, exposed to greater cold than that to which one working in the open is ordinarily exposed; not at liberty to stop work to protect himself); Days v. S. Trimmer & Sons, 176 App. Div. 124,162 N. Y. Supp. 603 (workman unloading coal from delivery wagon and carrying into houses of customers; coal wet and weather severely cold); Larke v. John Hancock Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584 (insurance solicitor and collector required to travel in the open weather 15 or 20 miles in very cold weather; made numerous calls; went in and out of heated houses); Canada Cement Co. v. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 N. C. C. A. 982 (employé working at the bottom of a quarry pit in intense cold for long hours). In the Massachusetts case the court concluded that the finding that the workman was exposed to ‘materially greater danger and likelihood of getting frozen than the ordinary person or outdoor worker’ was sustained. In the New York case the court said that the Industrial Commission ‘was fully justified in finding from the evidence that the claimant, by reason of his employment in handling wet coal in the storm, was specially...