Williams v. Comp. Comm'r.
| Decision Date | 07 April 1942 |
| Docket Number | (No. 9261) |
| Citation | 124 W.Va. 238 |
| Court | West Virginia Supreme Court |
| Parties | J. B. Williams v. Compensation Commissioner et al. |
Workmen's Compensation
Where a workman, who resides in a house not owned by his employer and at a distance of two or three miles from his place of work, of his own accord elects not to make use of either of two highways leading to his residence, but returned from his work through a railroad tunnel wholly on land not owned by the employer, and was injured therein at a place about one-third of a mile from the point where he left the employer's premises, such injury is not compensable under the Workmen's Compensation law, although the route so traveled was substantially shorter and more convenient than the highways and had long been used by the claimant and his fellow workmen without objection from either the employer or the railway company.
Appeal from Workmen's Compensation Appeal Board.
Proceeding under the Workmen's Compensation Law by J. B. Williams, claimant, opposed by the KingstonPocahontas Coal Company, employer. From an order of the Workmen's Compensation Appeal Board reversing a ruling of the Workmen's Compensation Commissioner disallowing compensation, the employer appeals.
Reversed.
Price, Smith & Spilman, for appellant. Patrick J. Flanagan, for appellee.
The Kingston-Pocahontas Coal Company brings here for review an order of the Workmen's Compensation Appeal Board, made August 12, 1941, by which a ruling of the Workmen's Compensation Commissioner, entered May 9, 1941, disallowing compensation to J. B. Williams, an employee of the appellant, was reversed with directions that compensation be awarded the claimant in the statutory amount.
Only a single question is presented here for solution, namely, whether the claimant, at the time of his injury, was within the zone of his employment. Williams was a workman in the mine of the Kingston-Pocahontas Coal Company, located on Tug River and the Norfolk & Western Railway about two miles west of the corporate limits of the City of Welch in McDowell County. He lived in a house, not owned by his employer, in the eastern part of that city, at a distance of two or three miles from his place of work. From the mining plant two public high- ways extended eastward to the City of Welch, one on either side of Tug River. A two-track line of the Norfolk & Western Railway also runs eastward through the Coal Company's land, past its shaft and operating buildings, through a tunnel called "Hemphill Tunnel No. 2", and thence, leaving the company's boundary, crosses Tug River by a trestle and passes through another tunnel 860 feet in length, known as "Hemphill Tunnel No. 1", located wholly on lands not owned by this company. The shaft, lamphouse and other operating buildings of the KingstonPocahontas Coal Company are located near the west end of Hemphill Tunnel No. 2. On the 23rd day of February, 1940, Williams quit work about eleven p. m. and started home from the lamphouse, walking by way of one of the aforesaid highways to its intersection with the railroad track at the edge of the company's property, where he left the highway, crossed the railroad bridge over Tug River, and continued through "Hemphill Tunnel No. 1", almost to its eastern end. There he was struck by a passing train and rendered unconscious. His hurts were subsequently described as "severe injuries to neck and head". He applied for and was paid insurance for several weeks under a policy covering only injuries not compensable under the Workmen's Compensation law.
The evidence shows that the claimant had worked for his present employer for about nine years, during all of which time he had used this tunnel in going to and from his work, and that practically all of his fellow-workmen did likewise without objection or warning from either the coal company or the railway company. Signs forbidding trespassing were always maintained by the railway company at the tunnel entrances and ends of the trestle across Tug River. It further appears that the highways leading from the claimant's place of employment to the City of Welch followed the curves of the river and were, therefore, much longer than the railroad track, which was straight and level.
The action of the Appeal Board was based, as shown by its order, on the case of McEwan v. Compensation Commissioner, 123 W. Va. 310, 14 S. E. 2d 914, decided by this Court May 20, 1941. In that case, we held that:
"Injury or death of an employee of a subscriber under the workmen's compensation statute, Code 1931, 23-1-1 et seq., occurring upon the right-ofway of a railroad company, used by said employee...
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