Teague v. Atl. Co, 538.

• Decision Date: 04 May 1938
• Docket Number: No. 538.,538.
• Citation: 213 N.C. 546,196 S.E. 875
• Parties: TEAGUE et al. v. ATLANTIC CO.
• Court: North Carolina Supreme Court

196 S.E. 875

213 N.C. 546

TEAGUE et al.

v.ATLANTIC CO.

No. 538.

Supreme Court of North Carolina.

May 4, 1938.

Appeal from Superior Court, Mecklenburg County; Frank M. Armstrong, Judge.

Proceeding under the Workmen's Compensation Act by S. P. Teague and wife, claimants, for the death of Sarse Eugene Teague, their son, opposed by the Atlantic Company, employer. From a judgment affirming an order of the Industrial Commission denying an award, claimants appeal.

Affirmed.

The findings of fact by the full North Carolina Industrial Commission were:

"(1) The parties to this cause are bound by the provisions of the Workmen's Compensation Act, Pub.Laws 1929, c. 120, as amended. The deceased employee had never rejected the provisions of the law as far as the record is concerned. The employer has not rejected the provisions of the law, but on the contrary, has qualified as a self-insurer under the provisions of the law.

"(2) Sarse Eugene Teague, the deceased employee, left wholly dependent upon him for support his father and mother, S. P. and Lizzie Teague.

"(3) The deceased, Sarse Eugene Teague, died as the result of an injury by accident four days after the happening of the said injury by accident.

"(4) The employee Teague's attempt to ride the empty crate conveyor from the basement to the first floor was obviously dangerous.

"(5) The employee Teague's attempt to ride the empty crate conveyor from the basement to the first floor was an attempt either for his own personal convenience or for the thrill of performing a hazardous feat; to do an obviously dangerous thing.

"(6) The empty crate conveyor was obviously designed, intended, and suitable for use only as a means of conveying empty crates from the basement to the first floor and obviously was not designed, intended or suitable for use to convey a human being from the basement to the first floor.

"(7) On a few occasions when the deceased had ridden the empty crate conveyor in the presence of his foreman or other boss-man, he had been warned of the dangers, reprimanded for his action and positively forbidden to do it again.

"(8) The defendant provided, and the employees, including the deceased, ordinarily used, conveniently located stairs as a means of going back and forth between the basement and the first floor of the bottling department.

"(9) The deceased, Teague, and other employees had ridden this empty crate conveyor upon occasions. Such occasions were infrequent and more or less secret, however, that is when the foreman or boss-man were not present.

"(10) No duty of Teague's, the deceased, required him to ride this empty crate conveyor or contemplated that he should ride this empty crate conveyor.

"(11) The average weekly wage of the deceased amounted to $24.75.

"(12) The accident occurred on the premises of the employer during the working time of the deceased, that is, the accident occurred in the course of the employment. It did not, however, arise out of the employment."

The...