Stevely v. Comp. Comm'r

• Citation: 24 S.E.2d 95
• Decision Date: 02 February 1943
• Docket Number: No. 9432.,9432.
• Parties: STEVELY. v. COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

24 S.E.2d 95

STEVELY.
v.
COMPENSATION COMMISSIONER et al.

No. 9432.

Supreme Court of Appeals of West Virginia.

Feb. 2, 1943.

[24 S.E.2d 95]Syllabus by the Court.

1. A widow and dependent of an employee who received fatal injuries in the course of and resulting from his employment is not barred from receiving benefits from the Workmen's Compensation Fund by the fact that the employee, at or immediately before the time of receiving such injuries, was in the performance of some act which was a violation of a rule or regulation adopted and kept posted by the employer and approved by said commissioner, as provided by Code, 23-4-2, unless such act proximately caused or contributed to such injuries.

2. An act of an employee, which may contravene instructions of his superiors, or of the state mining authorities, or be contrary to generally known and accepted practices of similar employees, but which appears to have been done impulsively or spontaneously in the face of a sudden and unforeseen emergency, does not amount to "wilful misconduct", within the meaning of Code, 23-4-2, so as to bar compensation to a dependent for the death of such employee resulting from such act.

3. A decision of the Workmen's Compensation Commissioner, from the evidence before him, and which has been affirmed by

[24 S.E.2d 96]

the Workmen's Compensation Appeal Board, will not be disturbed by this Court on appeal, if it is supported by any reasonable appraisal of the evidence.

Appeal from ruling of Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Law by Lora Stevely, widow of Carl Stevely, to recover compensation for death of her husband, opposed by State Compensation Commissioner and the Valley Camp Coal Company, employer. From a ruling of the Workmen's Compensation Appeal Board affirming an award of compensation, the employer appeals.

Affirmed..

Schmidt, Hugus & Laas, of Wheeling, for appellant Valley Camp Coal Co.

McKee & McKee, of Wheeling, for appellee.

ROSE, Judge.

Carl Stevely, an employee of the Valley Camp Coal Company, at its No. 3 mine located near the town of Triadelphia in Ohio County, was killed while at work on the 18th day of November, 1941. Lora Stevely made claim as his widow and dependent, and by the Compensation Commissioner was awarded $30 per month upon the conditions prescribed by the statute, which award, on appeal, was affirmed by the Compensation Appeal Board, and this appeal was granted the employer.

The deceased was a motorman operating a four-ton electric motor used for haulage in the mine. Immediately before the fatal accident, he started to bring his motor, without cars, out of the mine, following, at a distance of more than six hundred feet, an eight-ton motor also empty. When the advance motor had proceeded about one mile, a loosened hanger caused its trolley to slip from the wire, upon which the motorman in charge allowed it to drift a distance fixed by the evidence as between fifty and two hundred feet. It was then stopped and held by its brakes. When Stevely's motor reached the same detached hanger, its...