108 Kan. 121 | Kan. | 1920
This is an appeal from a judgment awarding compensation to the plaintiff for an accidental injury sustained by him while he was employed as a miner by the defendant.
The principal contention of the defendant is that the accident to plaintiff did not arise out of and in the course of his employment. There is little room for contention on this point. Plaintiff was employed to work in a coal mine designated as a strip pit, which was an excavation about three-fourths of a mile in length, and varying from twenty to thirty feet in depth. He was helping operate a coal loader near the coal face at one end of the pit, and when the loader shut down for the day he and others mounted a dinkey engine that was used to pull loads to the tipple at the other end of the pit where the coal was hoisted to the surface. On the way some empty cars that were insecurely placed on a switch track ran down the grade and collided with the engine on which plaintiff was riding, in such a way as to cut off the heel of his left foot.
It is insisted by defendant that plaintiff had quit his work and was on his way home, using a means of travel of his own selection, and was not at the time performing any service growing out of or incidental to his employment. While he had ceased work at the coal loader he was still in the pit, the place of employment, and still under the direction and control of the defendant. It cannot be said he was outside of his employment when he was passing from one part of the pit to the other, riding on the engine, a common means of transportation in going to the tipple, an appliance of the defendant for the purpose of ascending above ground. It was the usual custom of the miners “to ride out upon the last trip” upon the dinkey engines, and this was done with the acquiescence of the defendant. The injury which occurred on the trip was a result which was or should have been in contemplation of the defendant and which grew out of and was reasonably incident to plaintiff’s employment.
“It has been said that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises ‘out of and in the course of the employment'.! ” (L. R. A. 1916 A, 232.)
“The workman was in the mine, under the direction and entitled to the protection of the defendant at the time of the accident. Each owed duties to the other and the relation of master and servant still existed between them when the injury was sustained, although the workman was not actually using the pick and shovel at that time.” (p. 685.)
The facts in that case are quite similar to those of the instant case and the r.ule there applied is closely applicable here. (See the cases therein cited, and also, Monson v. Battelle, 102 Kan. 208, 170 Pac. 801; Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913; White v. Stock Yards Co., 104 Kan. 90, 177 Pac. 522; Benson v. Railway Co., 104 Kan. 198, 178 Pac. 747; Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372.) Under the authorities it is clear that within the meaning of the workmen’s compensation law the injury of the plaintiff arose out of and in the course of his employment.
There is a further contention that the award of compensation was excessive. It is apparent that an error in computation was made by which the plaintiff was given $99 more than he was entitled to receive under the rule of the statute. The
It is also contended that the court was not warranted in allowing plaintiff compensation for partial permanent disability. There is sufficient evidence to sustain the finding of the court in that respect. The fact that plaintiff was able to and did perform some labor part of the time, of the same character as he had previously done, does not impair the validity of the finding of partial permanent disability. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461.)
The judgment as modified is affirmed.