Universal Portland Cement Co. v. Spirakis

• Decision Date: 21 November 1922
• Docket Number: No. 11425.,11425.
• Citation: 79 Ind.App. 17,137 N.E. 276
• Parties: UNIVERSAL PORTLAND CEMENT CO. v. SPIRAKIS et al.
• Court: Indiana Appellate Court

79 Ind.App. 17

137 N.E. 276

UNIVERSAL PORTLAND CEMENT CO.

v.SPIRAKIS et al.

No. 11425.

Appellate Court of Indiana, Division No. 1.

Nov. 21, 1922.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act (Laws 1915, c. 106) by Plousia Spirakis and others against the Universal Portland Cement Company, employer. From an award in favor of claimants, the employer appeals. Reversed.

Bomberger, Peters & Morthland, of Hammond, and Knapp & Campbell, of Chicago, Ill., for appellant.

Hodges, Ridgely & McNeff and John Fox, all of Gary, for appellees.

BATMAN, C. J.

This is an appeal from an award of compensation in favor of appellees, arising from the death of Nick Spirakis, an employee of appellant. It is based on a claim that there is no evidence to sustain the finding that said employee “received a personal injury by an accident arising out of and in the course of his employment, resulting in his death.”

The undisputed evidence which appears as a stipulation establishes the following facts, pertinent to the question submitted for our determination: On the day said Nick Spirakis met his death, he was an employee of appellant, and had been so engaged for several months prior thereto. He worked in appellant's plant on said day, and met his death by accident on his way to board a train, after he had quit his work, under the circumstances hereinafter stated. The New York Central Railroad Company's tracks run in an easterly and westerly direction near appellant's factory, which is situated on the north side thereof. Prior to the accident in question, said company had granted to appellant and its servants the right to use a private crossing, running from its premises across said railroad tracks. After said grant, all of appellant's employees used said private roadway over said tracks in going to and from their work, as there was no other means of ingress or egress to and from the buildings of appellant's factory, which are located about 100 feet north of the north right of way line fence of said company. There is a line of railroad, owned by another company, between said factory buildings and said fence. The space between said fence and the north line of rails of said New York Central Railroad Company is about 50 feet in width. The tracks of said company at such place consist of a low-speed track on the north, two main tracks in the center, and a low-speed track on the south. Prior to the accident resulting in the death of Nick Spirakis, said New York Central Railroad Company, at the request of appellant, had erected a station on its own premises, about 25 feet west of said private crossing, for the use of appellant's employees, and others having business with it, which station is maintained by said railroad company, and is listed by it as a regular stop. Appellant had theretofore entered into an agreement with said company to hold it harmless, and to indemnify it against loss, on account of accidents happening to the employees of appellant, and others, crossing said railroad tracks upon said crossing. The trains of said company took on and delivered mail at said station for appellant and its employees, and a substation of the Gary post office was maintained on the grounds of appellant for the distribution of mail to it and its employees. There was no means of ingress or egress to or from said railroad station, except over the private crossing of appellant. Various trains of said railroad company stopped at this crossing to receive and discharge employees of appellant, and those having business with it at its factory. Said employees, in boarding said trains and alighting therefrom, did not always get on or off on the board walk across said tracks, and did not always use said walk in crossing the same. At times, when convenient, they would pass on either side of said walk, for the reason that not more than one step of a car could be stopped at said board crossing, and such method of travel was the usual and customary one. Approximately 1,500 men worked in appellant's factory each day. A large number of them used the trains of said railroad company in coming to and going from their work, and some went over a private road of appellant for a distance of two miles to Indiana Harbor. The said Nick Spirakis lived at Gary, Ind., and used said trains in going to and coming from his work at appellant's factory, as was the custom of a large number of the employees working thereat. He paid his own fare to said railroad company in making such trips. Appellant kept a watchman at the crossing in question to take up receipts from trucks entering and leaving its factory, to put mail on the trains, as hereinbefore mentioned, and to watch for the approach of trains. At the time of the accident, resulting in the death of said Nick Spirakis, he had left his work at appellant's factory, and had been waiting in said station of said railroad company for a train on which to take passage, from 10 to 15 minutes. At the time he received his said injuries he was passing from said station in a southeasterly direction, across said tracks, to get on an east-bound passenger train of said railroad company, which was the first passenger train to Gary, Ind., where he lived, passing after he quit work. When he reached a point about 10 feet west of the wooden private crossing over the tracks of said railroad company, he was struck and killed by a west-bound train thereof, passing over its track farthest north. Prior to the time said decedent started to cross said tracks, said watchman notified appellant's employees, who were waiting to take passage on said east-bound train, of its approach by announcing, “East-bound passenger train.” A large number of such employees were waiting for this train, and crossed over the tracks and got on the same; but said decedent did not succeed in doing so, but was killed while attempting to cross the track between said station and said train, which train he usually took, and was attempting to take for his home, at the time he received his fatal injuries.

It appears from the foregoing statement of facts that said Nick Spirakis was an employee of appellant, and had been working for it on the day that he received his fatal injuries; that prior thereto he had quit his work, and had left appellant's premises; and that at the time of receiving such injuries he was attempting to reach a train in order to board the same, and be taken to Gary, Ind., where he lived. It may be stated as a general rule that where an employee receives an injury by accident on his way to work before he has reached his employer's premises, or on his way from work, after he has left such premises, the accident cannot be said to arise either out of or in the course of his employment. Indian Creek, etc., Co. v. Wehr (1920; Ind. App.) 128 N. E. 765; Harper, Workmen's Compensation, 69; De Constantin v. Public Service Com., 75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A, 329;Nesbitt v. Twin City, etc., Co., 145 Minn. 286, 177 N. W. 131, 10 A. L. R. 165;Erickson v. St. Paul City Ry. Co., 141 Minn. 166, 169 N. W. 532;Fairbank Co. v. Ind. Com., 285 Ill. 11, 120 N. E. 457;Hills v. Blair, 182 Mich. 20, 148 N. W. 243. There are a number of conditions, however, under which this general rule is not applicable, among which we note the following: It is not applicable where an employee is injured on the premises of another along a way which the parties contemplated he should use, as a means of ingress and egress to and from his work, and which he was so using at the time of his injury. In re Maroney (1917) 66 Ind. App. 333, 118 N. E. 134; De Constantin v....