127 So. 540 | Ala. | 1930
Lead Opinion
Petitioner in this court, to whom we will refer as the employer, owned and operated a tipple at a railroad, in a valley with a hill on each side. The tipple was of wood construction, with composition roof. There was located upon the top of it a tin sign two feet high and eight feet long, held in place by two guy wires, on each side, with one end of each attached to the edge of the roof but not grounded. The decedent, an employee of petitioner, was engaged in the line of his duties immediately under the place where one of said wires was nailed to the roof. While so engaged lightning struck the guy wire, ran down the wire to the end, went through the roof where decedent was employed, struck decedent, and killed him. The court further found that the lightning was not attracted to the building by the tin sign, but the lightning would have struck the building even though the sign and wires had not been there, but being in the path of the lightning the wire conducted it to the end where it went through the roof; that the place and conditions were not necessarily dangerous in an electrical storm, and did not subject him to any risk from lightning other than an ordinary risk in a place of like kind or in a building of like kind in the same general vicinity; that a building in this valley was less liable to be struck than one situated on level ground.
There was no bill of exceptions, and we must therefore take as well supported the facts found by the court. But the legal conclusion from these facts is subject to review by this court.
The employer in this case insists that though the employee was killed by reason of an accident which occurred while he was in "the course of his employment," it did not "arise out of it." within the meaning of section 7534, Code. The clause there stated refers to "distinct conceptions and their concurrent existence is essential to invoke" the benefits of the Workmen's Compensation Law. But "overwrought refinements in administration should be avoided, since that process may conduce to the embarrassment, if not the defeat, of the beneficent purposes of remedial acts of this character." Ex parte L. N. R. Co.,
This court has given such liberal interpretation to the act in Ex parte Rosengrant,
The United States Supreme Court quotes with apparent approval the following from Anderson v. Adamson,
The courts have applied the principle to accidents to employees while engaged in the service of their employment when they were caused by lightning. 1 Honnold on Workmen's Compensation, p. 428, and the cases to which we will later refer. The principle is always the same, and the same result always follows from a proper answer to the inquiry of whether "the work or the method of doing the work exposes the employee to the forces of nature to a greater extent than he would be if not so employed." 1 Honnold, supra. *47
Referring now to some of the cases, we find it held that if an employee is out in the open, where there is no peculiar attraction to lightning, and is injured by lightning, such an accident is not a hazard peculiar to his employment. Kelly v. Kerry County Council, 1 B. W. C. C. 194; Hoenig v. Industrial Commission,
Cases in several states hold that an accident is compensable when an employee is exposed to an electrical storm in the course of his employment and for protection temporarily takes shelter under a tree and by reason of his position is struck by lightning (State ex rel. People's Coal Ice Co. v. District Court of Ramsey County,
In Alzina Const. Co. v. Industrial Commission,
In the instant case, it was found by the court that the location and construction of the building did not make the building a greater hazard to lightning than other buildings in the same or other locations. But, if the building should be struck by lightning and all buildings are liable to be struck (a common risk), did the guy wires cause a greater hazard to this employee than to others not so situated? If such be the fact, then this employee was exposed to a greater hazard from his employment than would those who are employed in buildings or at places where such hazard does not exist. His risk is more than the common risk. The finding is that the lightning struck and followed the guy wire to where this employee was working under it, in the line of his employment. He was struck and killed therefore as a direct result of a condition which creates a hazard which cannot be said to be a common risk, but was peculiar to him on account of the location of his work.
We find almost the exact situation treated in Emmick v. Hanrahan Brick Ice Co.,
The judgment of the circuit court so declaring is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
Addendum
The majority of the court, composed of ANDERSON, C. J., and SAYRE, BOULDIN, and BROWN. JJ., are of the opinion, and so hold, that the facts set out by the trial judge do not support his conclusion as to the result. The judgment denying the writ and affirming the case is set aside and the writ is awarded, and the judgment of the circuit court is reversed and the cause is remanded.
Writ awarded, and reversed and remanded.
GARDNER, THOMAS, and FOSTER, JJ., dissent. *48