Utah Apex Mining Co. v. Industrial Commission of Utah

• Decision Date: 17 July 1926
• Docket Number: 4416
• Citation: 248 P. 490,67 Utah 537
• Court: Utah Supreme Court
• Parties: UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

248 P. 490

67 Utah 537

UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4416

Supreme Court of Utah

July 17, 1926

Proceeding under the Workmen's Compensation Act by Mrs Vada Titcomb for the death of William Titcomb, her husband claimant, opposed by the Utah Apex Mining Company, employer and the AEtna Life Insurance Company, insurer.To review an award of compensation by the Industrial Commission the employer and insurer bring writ of review.

AWARD AFFIRMED.

Bagley, Judd & Ray, of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for defendants.

THURMAN, J. GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

THURMAN, J.

On September 18, 1925, William Titcomb, an employe of the plaintiffUtah Apex Mining Company, within the provisions of the Utah Industrial Act was killed by coming in contact with a cable charged with electricity.His widow, Vada Titcomb, sole surviving dependent of deceased, made application to the Industrial Commission for compensation.A hearing was had on said application, witnesses were sworn and examined, and the commission made findings of fact, conclusions therefrom, and an award allowing applicant the maximum compensation provided in the Industrial Act(Comp. Laws 1917, §§ 3061--3165, as amended), and $ 150 for funeral expenses.An application for a rehearing was denied, and the case is brought before us on writ of review.

The award is assailed on the grounds that the accident which resulted in the death of deceased did not "arise out of or in the course of his employment."That is the only question to be determined, the jurisdictional facts being either admitted or conclusively proven.

Among other facts the commission found that deceased was employed by the plaintiff mining company as a carpenter; that he was earning a sufficient wage to entitle his dependent to the maximum compensation; that on the date of his death after his shift was finished and while on his way home from work he was fatally injured on the company's property in some unknown manner by coming in contact with a live wire cable, resulting in his electrocution.The commission further found:

"There were no eyewitnesses.Deceased did not follow the usual means of ingress and egress to the mining company's property, but took a shortcut down by the ore bins to the road leading to Bingham where he had intended to meet Lawrence Singleton, a fellow workman who had invited deceased to ride home with him, and who was waiting for deceased at a point not far distant from where the fatal injury occurred.The route taken by deceased was used by but few of the employes in going home from work.The management was not aware that it was being used by any of them.The employes had not been forbidden to use this route."

Plaintiffs contend that the route supposed to have been taken by deceased in leaving his work was unauthorized, unsafe, more hazardous than the authorized route, and that therefore the accident did not arise out of or in the course of his employment.In order to determine this question it becomes necessary to describe, to the best of our understanding, the location of the company's property, and especially the features which tend to illustrate how the accident probably occurred.There being no eyewitnesses, we are compelled to rely solely upon the circumstances and conditions disclosed by the record.

Deceased lived in the town of Bingham about one mile below the property of the mining company, which is situated in what is known as "Carr's Fork."The general directions of Carr's Fork, which is a canyon, is northeast and southwest.At some points it bears almost directly east.There is a highway extending from the town of Bingham northeasterly through the company's property, and for some distance beyond.The first point of interest, as far as concerns the question here, is the company's mill situated near the southwest end of the property.Approximately 100 feet east of the mill is the checking office where the employees check in before starting to work and check out when leaving.The checking office is on the south side of the highway to which we have referred, and the entrance to the company's mine is on the north side directly opposite.Moving northeasterly from this point for a distance of about 300 feet on a welltraveled road which diverges from the main highway at the checking office we reach the company's carpenter shop.A railroad track used for carrying ore to the bins runs substantially parallel with the traveled road, and is covered, more or less, with snowsheds.There appears to be an opening in the side or end of the snowsheds, and beyond that opening there is a trail running by a tramway used for picking up and saving ore that is dropped from the cars above.The ore cars run on trestles to the top of the bins, and the tramway is several feet below.The trail referred to is connected with stairways by means of which some of the employes, especially those working in that vicinity, reach the main highway leading down to Bingham.From the evidence before uswe are unable to make a satisfactory pen picture of this situation.A map prepared by the company's safety engineer was admitted in evidence.It was called to the attention of one of appellant's witnesses, who identified it as being substantially correct.On the map appears all the features of the company's premises to which we have referred.What the company claims as the usual and authorized ways of ingress and egress are marked in blue.The route deceased was supposed to have taken on the occasion of the accident is marked in red.A red cross is placed on the tramway at the place where his body was found.The witness to whom we have referred testified to finding the body next day lying with its head down, both feet on the cable, one of which was badly burned.This cable was used to draw the skip on the tramway, and had become electrified by defective insulation.The witness' attention was called to the red lines on the map which indicated the supposed route deceased followed.After leaving the carpenter shop, as above stated, the red lines cross the tramway at or near its upper terminus and run along the east side and nearly parallel therewith for a distance of about 75 feet, where it ends on the tramway and where the red cross appears.Concerning these features the witness testified as follows:

"Q.I will ask you, Mr. Bannock, if you know whether there is a path leading alongside of this tramway?A.Well; I don't know how well a path there is, but there was a little path there.There was several went down that way.

"Q.Regularly?A.Why, every day there were some went down.I was working there, and would see them, but I never paid much attention how many went down.

"Q.How would they get to that point alongside the tramway?A.They would have to go out there through that door at the snowshed. * * *

"Q.Do you mean to say then the men would come out of the snowshed and under the trestle where the tramway is?A.Yes.

"Q.Did you say under the trestle or over?A.Under.

"Q.And then where does the path lead?A.Right straight down.

"Q.Under the trestle?A.The tramway.

"Q.And how far does that path lead with reference to where you say you found Mr. Titcomb's body?In other words, does the path lead farther down the trestle than the point where you found his body?A.No, sir.

"Q.From that point where does the path lead?A.Right across on the little platform there.

"Q.Then where?A.To the other stairway.

"Q.And where does that stairway lead?A.Down to the bottom, the ore bins.

"Q.Would that be down to the bottom of the canyon?A.Yes, sir.

"Q.Down to the main traveled roadway?A.Down to where the tracks are.

"Q.The tracks?The main railroad tracks in the bottom of the canyon?A.Yes, sir.

"Q.I believe you stated, Mr. Bannock, that you observed employes using this path alongside the tramway previous to the time when Mr. Titcomb was killed?A.Yes, a few went down that way; I don't know just how many; there were several went down there right along.

"Q.Would that be daily?A.Yes, sir; there would be some go down that way every day that way.

"Q.Do you know whether or not any official of the company ever told any of the employes not to take that path in leaving their work?A.No, sir, I do not.

"Q.Do you know who the foreman is about there who had charge of the workmen at that point, where they could observe men going up and down?A.Well; Mr. Hansen, I guess, is our boss out there.

"Q.Was he situated to he could see men travel that route?A.Yes, sir.

"Q.Do you know whether or not he had knowledge of men using that route?A.No, sir.

"Q.Youdon't know whether he did or not?A.No, sir.

"Q.Your work is at the head of the ore bins?A.Yes.

"Q.I think you said you didn't pay attention as to who it was going up and down there?A.No.

"Q.Do you know what men they were?A.Well; I guess some of the carpenters went down that way, and the blacksmith went down sometimes.

"Q.Were these carpenters and blacksmiths going down that way for the purpose of doing work there or to get off the property?A.No; going home."

Lawrence Singleton, employed by the company as a carpenter, and a witness for the company, testified to seeing deceased at quitting time shortly before the accident.He had been working that day in the carpenter shop and was going to the checking office to check out.His automobile was parked down at the bins, and he invited deceased to ride home with him.He left deceased at the carpenter shop to go to the checking office, and thence went to his car down the main highway.Deceased that day had been working at the...