Stevely v. Compensation Com'r

• Decision Date: 02 February 1943
• Docket Number: 9432.
• Parties: STEVELY v. COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

24 S.E.2d 95

125 W.Va. 308

STEVELY v. COMPENSATION COMMISSIONER et al.

No. 9432.

Supreme Court of Appeals of West Virginia.

February 2, 1943

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 trolley also left the wire, but he, instead of stopping or reducing his motor to control, rose to his feet and, with his back toward the direction in which the motor was traveling, proceeded to replace the trolley. Just as this act was completed, he turned and was in the act of seating himself when his motor crashed into the standing eight-ton motor, resulting in his instant death. Goundry, the driver of the eight-ton motor and Todd, a "snapper", or assistant, who was riding the Stevely motor, were the only surviving witnesses to the event. Both testified, but the excitement of the moment and the partial darkness ensuing, seem to have left them confused. The evidence shows that Stevely was thrown upward into the air by the impact of the motors, and upon their rebounding apart, fell in front of his own motor, which again immediately advancing down grade, ran over or against him causing his death.

The employer resisted the widow's claim on the theory that Stevely's death resulted from "wilful misconduct" and from "wilful disobedience" of certain rules and regulations which had been adopted by the employer and approved by the Workmen's Compensation Commissioner, and were kept posted as required by statute. The only "rule and regulation" so adopted, approved and kept posted on which reliance is placed is this: "When locomotive is in motion, do not stand up in the cab."

For two reasons, we think no bar arises under this rule. In the first place, Stevely's death is not shown to have been "caused by" his standing up in the cab. No evidence tends to indicate that his mere standing up in any way contributed to the accident. His failure to stop the motor, or to keep it under control, his turning his back in the direction of travel, and possibly other acts, may each have contributed to bring about his death. But his mere standing up is not shown to have caused the collision, or in any way to have contributed to his death. Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804. In the second place, the rising to his feet was apparently an impulsive, spasmodic, unpremeditated act done in a sudden emergency. By no reasoning can the act be called "wilful", a quality necessary to be shown in order that it may constitute a statutory bar. If not excusable, the act at most was only negligence, which, however gross, does not defeat the right to compensation.

But the decedent's conduct may not have amounted to "wilful disobedience" of a company rule, and yet have been "wilful misconduct", within the meaningful statute. The latter

expression is very general and very broad, and is not attempted to be defined in the statute. We have held, however, that the violation of a statutory mandate or inhibition may come under this designation. Carbon Fuel Co. v. State Compensation Commissioner, 112 W.Va. 203, 164 S.E. 27; Chiericozzi v. State Compensation Commissioner, W.Va., 19 S.E.2d 590. But in order that such violation be considered wilful, it must appear that the violator had actual knowledge of...