Colbourn v. Nichols

Conrad, J., delivering the opinion of the Court: [1] The Court finds no error in the first contention made' by appellant’s counsel, viz., that there were less than five persons engaged in the same employment at the time of the accident. The appellant was a teamster and by the evidence it clearly appears that he had more than five persons .in his employ, although all of his employes were not at the time of the accident working at the same job. The Statute contemplates a general employment, and not the subdivisions thereof. [2] The Court is satisfied that the deceased at the time of the accident was clearly engaged in the service of his employer. Sufficient evidence appears in the case to have warranted the Board in finding that the deceased was killed when engaged in a work in a way and at a place that had been suggested by his employer. So in that the finding to that effect is approved. [3] The evidence shows that the death of the deceased resulted from the improper or unskillful loading of the boxes on the elevator, but the deceased when he took a place on top of the boxes was seemingly unaware of that fact, and did not by so doing show “a deliberate and reckless indifference to danger.” The elevator seems to have been in good order and if the boxes had been properly loaded, was not dangerous and a person could with safety have ridden on top of them. The finding of the board is affirmed.