16 S.E.2d 804 | W. Va. | 1941
Turkey Gap Coal Coke Company complains of an order of the Compensation Appeal Board affirming the Commissioner's award to W. C. Billings of a seventeen per cent permanent partial disability for the loss of two fingers and an injury to the thumb of his right hand.
The claim was resisted by the employer on the grounds that Billings was guilty of (1) wilful disobedience of safety rule No. 7, which provides, in part: "Cleaning sand pipes or sanding rails by hand while the motor or locomotive is in motion is prohibited"; and (2) wilful misconduct under Code,
On or about June 21, 1940, claimant, an experienced motorman, was operating a supply motor in appellant's Modoc mine. While pushing five mine cars, loaded with mine props, up a slight grade on a straight track about two hundred feet within the mine, the wheels of the motor began to spin. Claimant upon discovering that the operation of the sand levers failed to release the sand to the rails, got off the motor while it was running, and, leaving it unattended, took the top from one of the sand boxes and began knocking the sand pipes with it for the purpose of opening the same. In some unknown manner *500 his hand was caught under the wheels of the motor and the injury sustained. Claimant was alone at the time of the accident. The only light in the mine at the time and place was that carried on his cap.
Claimant went to work at Modoc mine about six o'clock on the evening of the accident. He first pulled some "clean-up" loads, and picked up four cars of rock which he dumped on the other side of the mountain. In unloading the rock he found that the sand pipes on the motor had become clogged. Next, he picked up some rails, brought them through the mine and unloaded them. He then went to the drift mouth of the Modoc mine for the purpose of loading mine props, which were located about fifty feet from the mine mouth. On the way he passed the sand house but did not put dry sand in the sand boxes. He and his helper, Clifton McKinney, then loaded five mine cars with props, and claimant, using his motor, pushed the cars into the mine, where he was injured.
The motor had four sand boxes, each being 6x8x18 inches. From the bottom of each a sand pipe extended toward the rail. This pipe was about three or four inches long, the opening at the lower end thereof being seven or eight inches from the wheel. In the event the flow of sand can not be controlled by use of the levers, the sand pipes may be cleaned either by knocking them with a hammer or other hard object, or inserting a wire or stick, neither of which should be undertaken while the motor is running.
Rule No. 7 was properly adopted by the employer, approved by the Compensation Commissioner, and was posted at various conspicuous places on employer's property. In fact, the record shows that printed copies of the rules were posted at the mine tipple and each drift mouth. The poster at the Modoc mine was in a glass case at the left of the mine entrance about five feet above the ground and about fifty feet from where claimant and his helper loaded the mine props.
There is evidence to the effect that the mine foremen instructed the employees not to clean sand pipes or to sand rails by hand while motors were in motion, and that *501 about two years prior to the time of the accident a pamphlet containing the mining laws and safety rules, including rule No. 7, had been given to the employees when they came to the office for their pay. However, no one testified that claimant was ever instructed as to the rule in question or that he actually received a copy of the rules. On the contrary he testified that he never received any instruction or a copy of the printed rules, and that though he saw the poster in the glass case at the mine mouth he never took occasion to read it.
This state of facts brings us to the question of whether, under the circumstances of this case, claimant was bound by the rule as to the cleaning of sand pipes and the sanding of rails by hand. He, of course, contends that having had no actual knowledge of the rule and never having been instructed as to it, its violation is not wilful within the meaning of the statute (Code,
But the employer further contends that claimant is barred because he was also guilty of wilful misconduct in leaving his motor running and unattended as he walked beside it in an attempt to loosen the sand. In this the employer is supported by the record. Claimant admitted that he was injured while walking beside the motor while it was running, and many witnesses testified, without substantial contradiction, that such conduct was dangerous. If this resulted in claimant's injury, it is wilful misconduct within the meaning of the statute, and such that without acquiescence on the part of the employer would bar compensation. However, wilful misconduct will not render the claim non-compensable unless the injury complained of results therefrom, and it matters not whether the misconduct was inhibited by rule or statute. See the following cases in which wilful misconduct has been held to bar compensation: Venilli v. State Compensation Com'r.,
From the foregoing it seems to us that this claim is barred because of claimant's violation of safety rule No. 7, unless the employer by a course of conduct has acquiesced in its violation. Under the Workmen's Compensation Law wilful misconduct or the wilful violation of a safety rule in the face of employer's acquiescence does not bar compensation.McEwan v. State Compensation Com'r.,
Under the circumstances we think this case should be remanded for the purpose of having it further developed on the limited question whether the employer acquiesced in claimant's violation of the rule. On an "appeal" from the Workmen's Compensation Appeal Board this Court will not determine a question in the first instance which has not been fully developed or which has not been considered by the Commissioner and the Appeal Board.
We therefore reverse the order of the Appeal Board and the ruling of the Commissioner, and remand this case to be dealt with by the Appeal Board and the Commissioner in conformity with this opinion.
Reversed and remanded. *504