Wiley Mfg. Co. v. Wilson

Decision Date29 January 1976
Docket NumberNo. 337,337
Citation351 A.2d 487,30 Md.App. 87
PartiesWILEY MANUFACTURING CO. et al. v. Robert Leslie WILSON et al.
CourtCourt of Special Appeals of Maryland

Alfred M. Porth and Theodore B. Cornblatt, Baltimore, with whom were Smith, Somerville & Case, Baltimore, on the brief, for appellants.

A. Harold DuBois, Baltimore, with whom were Verderaime & DuBois, Baltimore, A. Freeborn Brown, Stanley Getz and Brown, Brown & Lanahan, Bel Air, on the brief, for appellees.

Argued before POWERS, MOORE and LOWE, JJ.

MOORE, Judge.

Taking a short cut via a railroad right of way to a company parking lot located some 790 feet from the plant where they were employed, two co-workers were seriously injured and their companion was killed when they were struck by a train. In the workmen's compensation case which followed, the claimants prevailed before the Workmen's Compensation Commission and its awards were affirmed by the Circuit Court for Cecil County. The question presented on this further appeal by the Employer and Insurer is whether the court erred in holding that under exceptions to the 'going and coming' rule 1 the injuries and death arose out of and in the course of employment of the three men in accordance with the requirements of the Workmen's Compensation Act, Art. 101, Maryland Code Annot., § 15 (1975 Cum.Supp.).

I

The claims of the two survivors and that of the widow of the decedent were consolidated. The pertinent facts as contained in the record before the Workmen's Compensation Commission received into evidence below and in testimony before the Circuit Court are these: The claimants, Franklin Jones and Robert Wilson, and the decedent, Arthur Brewer, were employed by the Wiley Manufacturing Company, a steel fabricator and medium-sized shipyard at Port Deposit, Maryland. As shown on the plat submitted in evidence and appended to this opinion, the plant is enclosed by a ten foot fence and is situated along the main line tracks of the Penn Central Railroad which run in a north-south direction. The entrance to the plant is on Ferry Street which crosses the railroad tracks and dead-ends at the plant entrance. At that location there are the customary railroad warning devices for vehicular and pedestrian traffic.

The Wiley Company had a total work force of approximately 350 men, on two shifts. It maintained employee parking lots, one of which was designated 'North Parking Lot,' and was located approximately 790 feet north of the plant entrance, abutting Main Street. Street access to this parking lot was by way of Ferry Street and Main Street. Somewhat shorter access was by way of the Penn Central Railroad tracks. The lot was not fenced.

Approximately 30 trains-mostly freight-used the tracks daily, some consisting of as many as 100 cars. Between 50 and 100 men walked the tracks every day to the North Parking Lot and most contained to do so even after the accident.

Franklin Jones and the decedent Arthur Brewer, were employed as welders. Mr. Wilson was a shipfitter, first class. On March 21, 1974 their work day began at 7:30 a. m. when they punched their time cards at the time shack located just inside the plant entrance. Because of inclement weather they were released from work at 11:30 a. m. They punched out at the time shack at that time, and by prearrangement, they were to ride home together in Mr. Jones' car which he had parked in the North Parking Lot. Instead of walking to the parking lot by way of Ferry Street and Main Street, they made their way north along the main line Penn Central Railroad tracks. (Jones had been using the tracks for five years and Wilson more than ten.) A train was stopped on the southbound track with its engines running. After the men had been walking a short time and had travelled approximately 350 feet from the time shack, they were struck from the rear by a train on the northbound track. The survivors said that because of the noise from the southbound train they had not become aware of the approaching northbound train.

Employees of Wiley Manufacturing Company were paid only from the time they punched in until the time they punched out and were free to choose their own means of transportation and, of course, their route to and from work. The parking lot was a 'fringe benefit'. The company did not own the property on which the railroad tracks were located and exercised no control over it. After the accident in this case warnings were issued by the company against the use of the tracks by the workers. These consisted of verbal admonitions by a guard stationed at the public crossing as well as printed statements in pay envelopes that the employees were forbidden by law to trespass on the railroad property. Prior to the accident the workers had never been advised or instructed by management not to use the tracks. There was, however, a posted notice of Penn Central that 'All persons are forbidden to enter, cross over or trespass upon this property, under the penalty provided by law.'

The lower court, in a detailed written opinion, rejected the contentions of the Employer and Insurer that the injuries and death did not arise out of and in the course of employment. Rather, the court held:

'At the time of the accident the claimants were in close proximity to the employer's plant between the plant and the parking lot maintained by the employer at an appropriate time on a route customarily used by other employees, which was a direct and convenient way of ingress or egress to the plant from the parking lot, and used by said employees with the implied consent of the employer. Therefore, this case falls within the exceptions to the general rule and the injuries sustained by the claimants are compensable.' (Emphasis added.)

II

The 'exceptions' to the general going and coming rule recognized in Maryland and to which the lower court referred are the 'proximity rule' and the 'premises rule'.

The elements of the 'proximity rule' were defined by Chief Judge Murphy in Stoskin v. Board of Education of Montgomery County, 11 Md.App. 355, 274 A.2d 397 (1971), supra, n.1. Upon the authority of Maryland Paper Products Company v. Judson, 215 Md. 577, 139 A.2d 219 (1958) citing 8 Schneider, Workmen's Compensation, § 1724 (1951) and Pariser Bakery v. Koontz, 239 Md. 586, 212 A.2d 324 (1965), the proximity rule was explained in Stoskin to mean that an employee is in the course of his employment while coming to or going from his work when, although off the actual premises of his employer, the employee is:

(1) In close proximity to the premises;

(2) Proceeding diligently at an appropriate time by reasonable means;

(3) Using the natural, practical, customary, convenient and recognized way of ingress or egress;

(4) Traversing land under the control of the employer, or on adjacent property with the express or implied consent of the employer.

The Court in Stoskin also observed that the rule, as analyzed in Pariser Bakery, supra, 'allows compensation for an injury to an employee when, under the special facts of the case, the employment itself involved peculiar and abnormal exposure to a common peril which is annexed as a risk incident to the employment.'

The rule was held to be unavailing in Pariser Bakery where the employee, a dough mixer, had completed his work dressed in the locker room and punched his time card. He then walked outside and was struck on the sidewalk, about seven feet beyond the building line, by an automobile out of control. Judge Marbury stated that, '(t)o allow recovery under the facts presented in this case would convert the proximity rule into a general rule applying to any street upon which a business might front.' 239 Md. at 591, 212 A.2d at 327.

Application of the proximity rule was also withheld in Stoskin, supra, where the appellant, a school teacher, was being driven to work by a friend. When she arrived outside the school grounds, carrying an armful of school books, she was injured as she alighted from the vehicle and stepped on a Coca Cola bottle which rolled out of the car and landed beneath her feet. She slipped and fell within the public right of way. This Court held that the lower court correctly decided that the proximity rule did not apply because the claimant was not by reason of her proximity to the school subjected to any special danger different from that to which the general public was subjected.

On the other hand, in Pappas v. Modern Manufacturing Co., 14 Md.App. 529, 287 A.2d 798 (1972) a lower court holding that the proximity rule was inapplicable was reversed. There, the employee slipped on some ice and fell, fracturing her right arm, while she was still on a parking lot provided by the employer and where access to the building where she worked was by way of a ten foot alley between the building and the parking lot. Writing for this Court, Judge Anderson stated that the case was controlled by the holding of the Court of Appeals in Proctor-Silex v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969), infra.

The 'premises rule', also a creature of case law, is designed to allow compensation for injuries sustained before or after actual working hours while on the premises of the employer and/or under an extension of the literal concept of 'premises'. 2 Larson, supra, § 15.12; Salomon v. Springfield Hospital, 250 Md. 150, 242 A.2d 126 (1968); Proctor-Silex Corp. v. DeBrick, supra; Saylor v. Black & Decker Manufacturing Co., 258 Md. 605, 267 A.2d 81 (1970).

Speaking for the Court of Appeals in Salomon, supra, Judge Marbury articulated the 'premises rule' in the following context:

'. . . we recognize that ordinarily an employee who has arrived on his employer's premises as usual, in preparation for beginning his day's work, is considered to be on the premises and therefore covered by workmen's compensation even though his actual employment has not begun . . ..' 250 Md. at 155, 242 A.2d at 129. (Emphasis added.)

And in Proctor-Silex, supra, where an employer's...

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2 cases
  • Wiley Mfg. Co. v. Wilson
    • United States
    • Maryland Court of Appeals
    • 27 Abril 1977
    ...Workmen's Compensation Commission, and the Court of Special Appeals, in a carefully considered opinion affirmed in Wiley Mfg. Co. v. Wilson, 30 Md.App. 87, 351 A.2d 487 (1976). We On March 21, 1974, at 7:30 a. m., appellees, Robert Leslie Wilson, a shipfitter, and Franklin LeRoy Jones, a we......
  • Sparrow v. Louis Dreyfus Corp.
    • United States
    • Court of Special Appeals of Maryland
    • 3 Septiembre 1981
    ...associated with the employment." Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 208, 373 A.2d 613, 617 (1977), affirming 30 Md.App. 87, 351 A.2d 487 (1976). Writing for the Court of Appeals in Wiley, Judge Levine pointed out that this exception has two "vital components," quoting from 1 La......

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