Wisconsin Steel Co. v. Industrial Commission

Mr. Justice Farmer delivered the opinion of the court: This was a proceeding before the Industrial Board by Josephine Karczewski, administratrix of the estate of her deceased husband, Felix Karczewski, to recover compensation under the Workmen’s Compensation act on account of the drowning of her husband, who was in his lifetime an employee of the Wisconsin Steel Company, plaintiff in error. The Industrial Commission found in favor of the administratrix and entered a finding accordingly. The cause was taken to the circuit court of Cook county by certiorari and the finding of the commission was affirmed. The trial judge certified that the case was one proper to be reviewed by this court, and the cause is here on writ of error. Plaintiff in error owns and operates a large steel plant covering considerable ground in South Chicago, Illinois. Among its buildings are three cast-houses, in which are located furnaces known as Nos. 1, 2 and “A,” and a storehouse in which the tools for making repairs are kept. The Calumet river runs in a northeasterly and southwesterly direction easterly of the cast-houses, and a slip has been made from the Calumet river south of the cast-houses, extending east and west about 1000 feet. Furnace “A” and its accompanying cast-house is situated nearest to and immediately north of the center of the slip. Furnaces Nos. 1 and 2 and their accompanying cast-houses are northeast of furnace “A,” No. 1 lying east of No. 2, and the storehouse is located several hundred feet northeast of furnace No. 1, near the westerly bank of the Calumet river. The cast-house containing furnace “A” was about 75 or 100 feet north of the slip. The cast-house containing furnace No. 1 was some 400 feet north of said slip. Felix Karczewski (usually called Joe3 Pelka and who will be so called in this opinion) had been employed for several years by the plaintiff in error as a pipe-fitter. Each blast furnace consists of the furnace proper and the stove. There are two or more stoves for each furnace. The combustible gases from the top of the furnace are carried off through one of them and the flues of the stove thus heated to an intense heat. The gas is then turned into the other stove, and the blast 0 is blown through the heated stove and enters the furnace at a very high temperature. Thus each stove is alternately being heated by combustible gases from the top of the furnace and being used" to heat the air which is blown into the bottom of the furnace. When a blast is in progress the heat around the outside of the furnace, near its base, ranges from 140° to 150° Fahrenheit. Besides the pipes or conduits through which’ the gas is carried from the furnace to the stoves and the blast carried from the stoves to the furnace, each furnace is also equipped with two water pipes about a foot in diameter running from the river to the furnace, which carry water to cool the base of the furnace. Pelka’s work was to inspect the mechanical parts of the three furnaces and keep them, including the water pipes, in good repair, and occasionally he was called on to assist in repairing the gas pipes also, but he was especially charged with the care of the water pipes which cooled the furnaces. He went to work about five o’clock on the night of September 28, 1916, his duties requiring him to be present at the tapping of the three blast furnaces operated by the company, to repair leaks if any should occur in the water pipes, and to see that all mechanical parts of the furnaces were in repair. The casting of the furnaces consisted in taking the iron from them, which was done by tapping them,— taking out a clay plug at the bottom and running the molten iron into ladles. The record shows that on September 28 Pelka was present at four casts,—at 6:30, 7:30, 9:10 and 10 o’clock, respectively. He was not present at the cast which was made at 11 :io o’clock. One witness, however, testified that he saw him and talked with him about three minutes before 12 o’clock that night, and the wife of the keeper of a saloon outside the steel plant testified to seeing him at her husband’s saloon at ten minutes after 10 o’clock that evening. The rule of the plaintiff in error was that no employee should leave the premises at this last named hour without permission of the foreman or his assistant, and none was given Pelka. It appears from the evidence6 that the only time an employee had a right, under the rule, to go outside of the plant without permission was during the lunch hour, from 12 o’clock midnight to 12 :3o A. M., and then only if his card was punched by the timekeeper at the gate, and the record does not show that Pelka went out through the gate at the midnight lunch hour. He did not appear at the casts that took place at 11:10 and 12:20 o’clock. There is no evidence that tends in any way to showr why he was not present at the cast at 11:10 o’clock, for his fellow-employee, Gojyak, testified that he saw him and talked with him a. few minutes before the midnight whistle blew, in the vicinity of furnace No. 2, and so far as the record shows he was never seen alive after that. The foreman testified that he missed him between 11 and 12 o’clock and made a search for him for some time thereafter but could find no trace of him. He was found drowned in the slip about 200 feet west of furnace “A” two days after he disappeared. The only question presented is whether there is any proof to warrant the conclusion that the accident resulting in Pelka’s death arose out of his employment. The evidence shows that when the furnaces were in operation they produced heat around the outside of the base varying from 140° to 150° Fahrenheit; that gases were liable to, and did, escape, which, when inhaled by the workmen, at times necessitated their going or being taken to the door or outside the building to get fresh air. One witness testified he had been taken to the river for air when gassed. Men accustomed to working around these furnaces could not readily detect the odor of the gas and were liable to be overcome or affected by it before they realized that gas was escaping. Pelka was last seen at about 12 o’clock midnight in the vicinity of furnace No. 2, and the witness who saw and talked with him did not testify that there was anything in his appearance or talk to indicate he was then affected by gas. The foreman of the plaintiff in error testified he was around the furnace that night thirteen hours and did not discover any gas. There was no proof that Pelka was affected by gas or heat the night of his disappearance. It is the theory of the defendant in error that Pelka was oppressed by heat or became faint and dizzy from gas, went to the dock alongside the slip for fresh air, and fell, and was drowned, or if he was in the vicinity of furnace “A” and desired to go to the storehouse, the best route would be along the slip to the river, then along the bank of the river northeast to the storehouse, or if he went on a tour of inspection of the water pipes, that would take him along the dock of the slip. It is said it will not be presumed that Pelka went to the slip or river for pleasure; that the reasonable inference is he went there in the performance of his duties, accidentally fell in and was drowned. There is nothing in the evidence to indicate that Pelka committed suicide or was murdered, but the conclusion is wárranted that his death was accidental. Does the proof tend to show that it occurred while he was reasonably fulfilling the duties of his employment or engaged in doing something incidental to it? The burden is on the applicant to prove that the accident arose out of the employment by direct and positive evidence, or by evidence from which such inference can be fairly drawn and without being based on mere conjecture or surmise. (International Harvester Co. v. Industrial Board, 282 Ill. 489; Savoy Hotel Co. v. Industrial Board, 279 id. 329; Central Garage v. Industrial Com. 286 id. 291.) In Peterson & Co. v. Industrial Board, 281 Ill. 326, we said: “Liability cannot rest upon imagination, speculation or conjecture, upon a choice between two views equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them.” The foreman testified there were no repairs made by Pelka the night of the accident; that Pelka had no duties that would take him to the slip, and that he (the foreman) gave him no orders that would require him to go there. Pelka was present when the cast was made at furnace No. 2 at 10 o’clock P. M. but was not present when any of the later casts were made. He was at the Tomecal saloon, outside the grounds of the plant, without permission, ten minutes after 10 o’clock, and was next seen at or in. the vicinity of furnace No. 2 three minutes before midnight but was not present when any other cast was made. There was no proof, direct or circumstantial, to show why he went to the river or slip, or whether he went there in fulfilling any duty of his employment or in doing anything incidental to his employment. The inference is as reasonable from the evidence that he went to the place of the accident as a voluntary act outside the duties of his employment, without the knowledge of his employer, and was drowned, as it is that he was acting in the line of the duties of tyis employment or engaged in something incidental to it. It can only be surmised or conjectured from the evidence how the accident happened and the reason Pellca came to the place where it occurred. Under all the authorities this is not sufficient upon which to predicate a liability. The judgment is reversed and the cause remanded, with directions to the circuit court to set aside the award. Reversed and remanded, with directions.