McNeil Coal Corp. v. Industrial Commission

Mr. Justice Otto Bock delivered the opinion of the court. — 264 — This is a workman’s compensation case. The employer is a Colorado corporation engaged in the business of mining and selling coal. The employee commenced working for the company October 12, 1938, and the accident resulting in his instant death occurred at 8:30 a.m. on the. same day. Claim for compensation was duly presented to the Industrial Commission by the dependents of deceased employee, and an award entered in their favor in the sum of $3984.38, May 8, 1939. Thereafter this action was instituted in the district court where judgment affirming the award of the commission was duly entered, to review which the employer brings the case here by writ of error. The sole question presented for our consideration concerns the refusal of the trial court to direct the commission to reduce the amount of compensation fifty per cent under the provisions of section 362, chapter 97, ’35 C. S. A., the portions of which, pertinent to the facts presented by the record, read: “The compensation provided for herein shall be reduced fifty per cent: * * * (b) Where injury results from the employee’s wilful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” The commission found as follows: “The Commission finds from the evidence that decedent’s action in climbing to the top of the abandoned shaft was for the purpose of doing the work at hand and was not the violation of ‘any reasonable rule adopted by the employer for the safety of the employees’.” Liability on the part of the employer was admitted. The record discloses that upon the day in question the employer was having trouble with a crusher, and that a piece of sheet iron was needed in its repair. The company superintendent learning that a small iron door on an old abandoned air shaft “was suitable for the job,” took the employee with him to assist in removing it. Upon arriving at the shaft the two men proceeded to — 265 — take down the door but encountered some difficulty, by reason of the fact that it was held securely by a two by six at the top. The employee suggested, “I can go up and push that 2x6 away and relieve the door and get the door off.” Since the testimony of the superintendent is of vital importance, we deem it advisable to quote it somewhat in detail: “Q. Were you working with Mr. Caumiant on the morning of October 12th, 1938? A. Yes, sir. “Q. Will you please state to the Referee what happened at that time? A. Well, on the morning in question we had had a little trouble with our crusher two days before that, and I took August Caumiant down there to get a piece of sheet iron to fix up the crusher that morning. “Q. Just tell what happened. A. Well, we looked all over the place and then I learned that the small door that was on the old abandoned air shaft was just the right size and I went over there to measure it up, and after measuring it we found it was suitable for the job, so we were going to take it off and put it on the crusher. “Q. Will you proceed and tell what happened? A. Well, on this door, it was partly open, and there was a two by six on top of the door holding it in this position (illustrating). Mr. Caumiant said to me, T can go up there and push that 2x6 away and relieve the door and get the door off,’ and I told him not to go up there. “Q. Why did you tell him not to go up there? A. Because I considered the place wasn’t safe for anybody to go on. “Q. When you told Mr. Caumiant not to go on the roof or on top of the covering of this abandoned air shaft, did you tell him it was dangerous? A. No. He said to me, ‘Is it safe?’ and I said, ‘I don’t know.’ “Q. Did you tell him not to go on top? - A. I told him I wouldn’t go up there, and not to go up there. — 266 — “Q. You told the deceased not to go up on the roof of this structure? A. What I told him was, when he asked me the question about going up there, I told him I wouldn’t go up there because I considered it wasn’t safe. “Q. But you didn’t tell him not to go? A. I told him not to go after that. He said he could go and kick this off.” After this conversation the superintendent turned his back to the employee and had walked about thirty feet, when the accident occurred. A report made by the employer to the Industrial Commission on the same day contains question No. 10, as follows: “10. Was accident caused by Failure to use safety device.......................................... Yes or No Intoxication of employee................................................ Yes or No Failure to obey safety rule............................................ Yes or No “If you answer yes, attach statement of facts.” The question was not answered. Question No. 13 of the same report and its answer are as follows: “13. Describe fully how accident occurred and what employee was doing at the time. [A.] Trying to get steel door from building over air shaft. Got on roof and same caved in.” The superintendent is the only person who, according to the evidence, knows whether any safety rule was adopted relating to this air shaft. It would be a reasonable inference to be drawn from the testimony adduced that no specific instruction was given to the employee to stay off the roof. The testimony is uncertain, ambiguous and lacks definiteness. It indicates only that the superintendent cautioned the employee, in a conversation which naturally would occur under the circumstances. Although the adoption of a rule does not have to be in writing, a conversation between the superinten — 267 — dent and an employee, such as we have here, cannot, under the circumstances, be reasonably construed as the adoption of the rule within the meaning of section 362 (b), supra. Prior to the date of the accident, the superintendent had made an examination of this air shaft, together with a mine safety inspector, and although they found its condition highly dangerous, no warning signs were posted about it. The employee’s service was of such short duration that he had had no opportunity to acquaint himself with any dangers surrounding the shaft. Plaintiffs in error rely upon our opinion in Stockdale v. Industrial Com., 76 Colo. 494, 232 Pac. 669. In that case we defined the word “wilful,” as used in this section, as meaning “with deliberate intent.” There employee, and all of his fellow workmen, had been warned that the bridge upon which the accident occurred was unsafe, and they were “forbidden under pain of discharge to use it with teams.” This, of course, was the adoption of a rule for the safety of the employee and was known by him for some time prior to the accident. It was a specific instruction forbidding crossing the bridge with teams. We have no such factual situation in the case before us. Construing section 362 (b), supra, we said in Clayton Coal Co. v. De Santis, 95 Colo. 332, 334, 35 P. (2d) 492: “It is only where the employer has adopted a rule for the safety of the workmen, and that rule is a reasonable one, and a workman wilfully fails to obey it, that the compensation of the workman is reduced 50 per cent.” The finding that there was no violation by the employee of any safety rule adopted by the employer was warranted under the facts. It cannot be said that there is any evidence establishing the adoption of a safety rule, nor is there any evidence of a deliberate intent on the part of the employee—in view of the circumstances here—to disobey any safety rule. To sustain — 268 — the contention of plaintiffs in error it would be necessary to so narrowly interpret section 362 (b), supra, as to be inconsistent with a liberal interpretation, which we have held is to be applied in construing the Workmen’s Compensation Act. Danielson v. Industrial Com., 96 Colo. 522, 44 P. (2d) 1011. The district court was correct in approving the finding and award of the commission. The judgment is affirmed. Mr. Justice Francis E. Bouck dissents. The following dissenting opinion was filed January 25, 1940.