McCulloch v. Industrial Commission

A PROCEEDING under the Workmen's Compensation Act. The Industrial Commission and the district court, in turn, found for claimant, but because of the latter's failure, as further found, to obey a reasonable safety *Page 125 rule, the compensation to be paid was reduced fifty per cent. It appears that claimant was employed by defendant in error Pikes Peak Fuel Company, as a coal miner, and that in the course of such employment he received particles of coal in his left eye which resulted in permanent loss of the vision thereof. If there was a company rule requiring miners to wear goggles while performing the kind of work which engaged claimant's attention at the time of the accident, as contended by defendants in error, and that claimant was not wearing goggles at such time, as they further contend, then a situation arose which is controlled by the applicable provisions of section 362, chapter 97, volume 3, '35 C.S.A., which are as follows: "The compensation provided for herein shall be reduced fifty per cent: (a) Where injury is caused by the wilful failure of the employee to use safety devices provided by the employer. (b) Where injury results from the employee's wilful failures to obey any reasonable rule adopted by the employer for the safety of the employee." After a first hearing conducted in due course on which a referee of the commission found and awarded as indicated, which award was thereafter approved by the commission, on claimant's petition for a review the matter was reopened, and on a more extended hearing, particularly as to the existence of the claimed rule and claimant's conduct with relation thereto, the commission affirmed and approved its original findings and award. The district court in an appropriate action, upon reviewing the record and proceedings, entered its judgment affirming the commission's award. [1] This judgment is variously challenged, and the points urged against it have been ably presented. Our study of the record, however, leads to the conclusion that the controlling question is one of fact. There was evidence to the effect that a rule of the employer required its employees engaged in work of the nature of *Page 126 that which was being performed by claimant at the time of the accident, to wear goggles; also it appeared from the evidence that to a considerable degree claimant was not observant of the rule. The commission, considering the record developed on two hearings, as we have seen, resolved that there was such a rule, and that claimant had not been mindful of it. The district court, as already stated, resolved as had the commission. We entertain no convictions which warrant us in overruling its action. Let the judgment be affirmed.