Howell v. Standard Ice & Fuel Co.

Barnhill, J. It is admitted that deceased was an employee of defendant fuel company and that be was injured by accident on 20 March, 1945, and died tbe next day as a result of such injuries. That be received tbe injuries in tbe course of bis employment could not be seriously debated. Hence tbe one question posed for decision is this: Is there any evidence in tbe record to sustain tbe conclusion that tbe injury by accident arose out of tbe employment of tbe deceased ? Tbe term “arose out of” has been so often defined by this Court that it now has an established and well-recognized meaning. Bryan v. T. A. Loving Co., 222 N. C., 724, 24 S. E. (2d), 751, and cited cases. Tbe accident suffered by deceased, in our opinion, comes clearly within that meaning. He was sent by bis superior to tbe trestle platform to perform certain duties in connection with tbe unloading of a car of coal. He bad swept out tbe front end and was waiting until tbe ear could be moved and the “off” end unloaded so that be could sweep that out also. So then, be was doing what at tbe time be was assigned to do — waiting until tbe gravity flow of coal ceased. He was on tbe unloading trestle where bis *732 work required bim to be. The risk of falling from the trestle was a hazard of the employment to which he was exposed by virtue of his assignment to assist in the unloading. The nature of the work was the very thing that carried him there. But defendants insist that “Fulwiley’s only job on the trestle was the narrow and specific job of pushing down coal inside the car after the end of the car was nearly empty”; he “was not authorized to be on the west side of the trestle when the car doors were being opened”; he “voluntarily left his place of safety in violation of understood instructions” ; and he “had no duties to perform anywhere while the doors were being opened.” This is to say an employee must step only where his work compels him to step; go only to the exact spot his duties require him to go. The rule of liberal construction will not permit such a narrow and restricted application of the law. The failure of the deceased to observe the instructions to stand on the top of the oil tanks and his going on the west side where the workmen were opening the doors were, at most, acts of negligence which do not bar recovery. Archie v. Lumber Co., 222 N. C., 477, 23 S. E. (2d), 834; Michaux v. Bottling Co., 205 N. C., 786, 172 S. E., 406. He was on the trestle to perform the work assigned to him, and it was as much his duty to wait while the unloading was in progress as it was for him to enter the ear and sweep it out after the gravity flow ceased. Brown v. Aluminum Co., 224 N. C., 766, 32 S. E. (2d), 320. The cases cited and relied on by defendants are clearly distinguishable. In each the workman, of his own volition and for his own pleasure or convenience, undertook to do something entirely outside the work he was employed to do. Bellamy v. Mfg. Co., 200 N. C., 676, 158 S. E., 246, is more nearly in point. As the uncontroverted evidence supports the conclusion that the injury by accident sustained by deceased arose out of and in the course of his employment, the judgment must be Affirmed.