Indian Creek Coal & Mining Co. v. Wehr

McMahan, J. This is an appeal from an award made by the Industrial Board in favor of appellee Lucile Wehr on account of the death of her husband Lloyd Wehr. Appellant’s contention is that the injury which resulted in the death of Lloyd Wehr did not arise — 142 — out of or in the course of his employment with appellant, but that it was the result of an accident which occurred after he had quit work for the day and while he was a passenger upon a railroad train. Appellant owned and operated a coal -mine located about thirteen miles from Vincennes, and employed about 400 men in and around this mine, all of whom lived in Vincennes. There were no houses at or near the mine where these men could live, and it was necessary that they be transported to and from their work by railroad. This mine was located between three and four miles away from the Indianapolis and Vincennes branch of the Vandalia Railroad. In 1911, when the mine was opened, appellant entered into an agreement with the railroad, under which a spur track was constructed from the railroad to the mine for the purpose of hauling the coal from the mine. In January, 1912, appellant and the railroad company entered into an’ agreement, whereby the railroad company agreed to run a train from Vincennes to the mine and back each work day for the purpose of carrying the miners and employes of appellant to and from their work. The appellant agreed to and did pay the railroad company $500 a month for the use of this train, and deducted $1.25 a month from the wages of each of its employes for the privilege of being carried on this train. The employes were required by appellant to, and they did, sign an agreement whereby they assumed all risk of personal injury or death while riding on said train, or in boarding or alighting therefrom, and released the appellant and all others connected with or concerned in the running of said train from all liability for damages on account of any personal injury sustained while getting on, alighting from, or riding on said train. A copy of said agreements between appellant and the railroad and between appellant and its employes is set out in — 143 — Vandalia R. Co. v. Stevens (1918), 67 Ind. App. 238, 114 N. E. 1001, and need not be copied here. Lloyd Wehr was in the employment of the appellant and three other coal companies. On January 13, 1919, he was working for the appellant. He was a civil engineer and his duties consisted in surveying the mine and making maps thereof. In doing this work, he worked in and around the mine as well as in the office. The train which carried the miners to and from their work left Vincennes in the morning of each day and on the return left appellant’s mine at 3:45 p. m. On the afternoon of said day Mr. Wehr had been at work in the office. The regular quitting time for the men working at the mine was three o’clock. On this afternoon Mr. Wehr continued at his work in the office until just about time for the train to leave, when he ran out to catch the train which was just starting, and a few minutes later he was found on the railroad track between the rails with both legs broken and crushed. His body was found at a point about 200 feet from the office where he had been working, and about forty feet from the tipple. No one saw him at the time he was injured. He was not seen on the train, nor did any one see him get on the train. He was one of the last to leave the office. Mr. Donie, who was the superintendent of appellant, in his testimony said: “I did not see him get killed, but did see him about two minutes afterwards lying on the track of the main spur that brings the cars from the old I. V. to the mine. * * * The accident happened about 50, 75 or 100 feet from the end of the track at the mine. He was killed by the last or next to the last coach. He fell and was crushed. He had been doing general work around the mine that day. * *' * He was the last to get on the train. When I came around he was lying on the ground and the gravel pile prevented us from seeing the accident. * * * He did — 144 — not have any duties for the mine on the train. His duties in relation to the Mining Company were all performed at the mine. He was not employed to go different places for the mine. When he left the mine his day’s work was over, and he attempted to board the train to go to the place where he was boarding. He left the office just ahead of us, and he had quit his work when he left the office.” Another witness, who was on the train, said it had pulled out about 100 yards when he heard that a man had been run over. He went back and saw Mr. Wehr. He was about forty feet from the tipple, lying between the rails. He was conscious at that time, but did not say he had been run over by the train. His limbs were practically crushed off. He was on the track where the train had just passed. The witness did not see him get on the train and did not know whether any one saw him fall under the train. The evidence does not disclose who is the owner of the right of way over which the spur runs from the main line to the mine. It is certain, however, that at the point where Mr. Wehr was injured the track was located upon the property of the appellant. Mr. Donie testified that he did not know who owned that track. Prior to the decision in the Stevens case, in January, 1917, the train which carried the workmen to and from appellant’s mine was operated under the written contract hereinbefore mentioned. Appellant’s president and superintendent both testified that, after the decision in the Stevens case, the train was not operated under the original written contract, although no other contract was ever entered into between appellant and the railroad company. Appellant continued to and at the time of Mr. Wehr’s death was paying the railroad company $500 a month to operate this train. During part of the time the appellant deducted $1.50 a month from the — 145 — wages of each of its employes for the privilege of riding on the train. This was afterwards changed to $1.25 a month. If the workmen had been required to pay the regular fare, which amounted to forty-four cents each way, it would have amounted to $22 a month, and appellant could not have secured men to operate its mine. It was cheaper for the appellant to guarantee the $500 per month than to provide homes for the men at the mine. While the president of appellant testified that the agreement with the railroad was abrogated after the decision in the Stevens case, he also testified that no other or different agreement was thereafter entered into. The train was operated the same way and on the same terms, after the decision in the Stevens' case, as it was before that decision. It is evident that this train was being run for the benefit of appellant; that appellant had agreed to pay, and at the time of the injury to Mr. Wehr was paying, the railroad company $500 a month for the train, and, in order to recoup itself in whole, or in part at least, deducted from $1 to $1.50 a month from the wages of its employes, and issued tickets to them, which entitled them to ride on this train. These tickets were furnished by the railroad, but were not punched or taken up by the conductor on the train. In addition to the facts hereinbefore stated, the evidence clearly shows that the train which Mr. Wehr was intending to get on was furnished by appellant for the sole purpose of getting its workmen to and from their place of work, and that it was the only way of getting them to their work or getting them to their homes after their day’s work was done. It was necessary for appellant to have this train in order to get its men to the mine, and it was furnished by appellant for that purpose. — 146 — 1. At the time Mr. Wehr was injured, he was leaving his work, but was yet on the premises of appellant. Whether in running to catch the train he stumbled over the pile of gravel, or whether he was attempting to get on the train and slipped and fell, is not disclosed by- the evidence. But it is shown by the evidence that he was on the way from the office to the train which was furnished by appellant to carry him and appellant’s other workmen to their homes, and that in attempting to take the train he was injured to the extent that he died a few hours later. He was on the premises of appellant, where he not only had a right to be, but where it was necessary for him to be in order to get on the train which appellant had furnished and which it expected and intended he should take in order to get to and from his work. In attempting to reach this train, he was injured. How or why he was injured is not shown, but it was caused by one of the instrumentalities furnished by appellant and was one of the accidents reasonably and fairly growing out of appellant’s business and in the course of the employment of Mr. Wehr. It is frequently difficult to determine whether an injury is suffered by ah accident arising out of the employment by applying the standard of some other case. Each case must be considered with reference to the particular facts in the case. In the case at bar, we are impressed that the accident arose from a hazard occasioned by the conduct of appellant in the operation of its mine. In Re Stacy (1916), 225 Mass. 174, 114 N. E. 206, an icehouse laborer on his way home from work was drowned by breaking through the ice while crossing a pond in the control of his employer, crossing the pond on the ice being the reasonable and customary way for — 147 — him to reach his home, and the way the other employes living in that direction regularly took in reaching their homes. In affirming an award, the court in that case said: “While the employe’s work for the day had been finished and he was on his way home at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment, even if he is not actually working at the time of the injury. * * * The finding that the pond was in control of the employer and that crossing over it upon the ice was the ‘reasonable and customary way’ for the deceased to reach his home, and that he and other employes who lived in the same direction ‘crossed it this way regularly,’ warranted the further finding that the injury occurred in the course of the employment. It also could have been found that the death of the employe was due to his employment as a contributing proximate cause, incidental to the nature of the work in which he was engaged. There was evidence from which the board could have found that Stacy’s death occurred by reason of the special hazard incident to the work, which it was his duty to perform.” The same court, In re O’Toole (1918), 229 Mass. 165, 118 N. E. 303, said: “If the employe is injured in going to or returning from his work upon the master’s premises, or on premises available for the purpose, or if during intervals of leisure which occur in the course of his employment he is injured, he may still be within the scope of his employment and entitled to the benefits of the act.” We think it is clear from the evidence in this case that the injury and death of Mr. Wehr occurred by reason of the special hazards incident to the work which it was his duty to perform, and that the finding of the Industrial Board that the same arose out of and in the — 148 — course of his employment is sustained by the evidence, and is not contrary to law. The award is affirmed and increased five per cent.