193 Iowa 1084 | Iowa | 1922
— The application of claimant for arbitration alleges that Henry M. Christensen received an injury, which resulted in death, arising out of and in the course of his employment, on the 6th day of June, 1916, and prayed an award granting relief under the Workmen’s Compensation Act. Henry M. Christensen was a single man. The claimant alleged that she was the mother of the injured employee, and that she and her two daughters were dependent upon him for support.
Defendants admitted that Henry M. Christensen was killed while attempting to jump aboard a moving freight train, but specifically denied that Henry M. Christensen received the injury arising out of and in the course of his employment, and further specifically denied that the claimant and her daughters were dependent upon the earnings of Henry M. Christensen, deceased.
For some time prior to and on June 7, 1916, Henry M. Christensen was in the employ of appellants Hauff Brothers, acting in the capacity of general manager of their implement store at Struble, Iowa. On the 7th day of June, 1916, Henry M. Christensen lost his life, in an endeavor to board a flat car on a moving freight train.
The evidence in the case was given by witnesses produced by claimant. Defendants offered no testimony.« The facts in the case’ áre substantially as follows:
The firm of Hauff Brothers was engaged in the farm machinery and hardware business at the towns of Hinton, Merrill,
Hauff bought Christensen a ticket to Struble, and gave it to Christensen to go on the freight train, which left Hinton at 8:35 A. M. This freight train arrived at Hinton from the south at 7:35, leaving about an hour later. After discharging local freight, it was backed down on the siding to await the passing of a passenger train from the north, after which it was backed onto the main line, to come up from the south, without stopping again at the station. In the meantime, according to the testimony of D. IT. Hauff, Christensen had been engaged in setting up a mower and hay rake. Christensen had finished setting up the machinery, and was standing in the door of Hauff Brothers’ store, some 150 or 200 feet diagonally across the street from the railroad station, talking to D. TI. Hauff, when the freight train started, and Christensen went over to the depot to get on the freight train, to go to Struble. The train was made up of about 28 freight cars, with a caboose on the rear end, which was for the accommodation of passengers. The caboose was the only car in the train meant for the accommodation of passengers. At the rear end of the caboose, back of the wheels, there were steps for entering the caboose, and seats inside for the accommodation of passengers. When Christensen reached the depot platform, by the side of which the freight train was moving at 8 to 10 miles an hour, instead of boarding the ca
Fisher, the 'station agent, who witnessed the tragedy, testified:
“Mr. Christensen was running slower than the cars were moving, — the cars were passing him. He was running all the time, and I saw him place his hands on the flat car. He tried to jump on at the same time that he tried to put his hands on the flat car. He did not have anything to hold onto. He tried to throw himself up in some way on the flat car by placing his hands on the flat car and jumping. He did not make the flat car, and the accident happened. The flat car on which Mr. Christensen attempted to jump was an ordinary flat car, as to height from the ground, and was without any hand grabs or grab irons. The caboose had hand grabs that the passengers could take hold of in boarding the train. T]iese hand grabs were for the use of the passengers. The caboose had steps on the side, regular' steps that extended downward, so that the passengers could mount the caboose readily, such as are ordinarily used for the accommodation of passengers on freight trains.”.
Witness P. W. Snowden testified that the train was running four or five miles an hour, and that there were four or five cars between the flat car and the caboose. This witness also testified that some man, assumed to be the conductor, got on the engine, and he heard this man tell Christensen to “Go down and get on.” Snowden-said:
“This man pointed toward the caboose, when he said to Christensen, ‘Go down there and get on.’ ”
Snowden also described Christensen’s attempt to board the flat car, substantially the same as did the station agent, Fisher.
That the accidental death of Christenson arose in the course of his employment with appellants Hauff Brothers, there can be no question. He was in the employ of Hauff Brothers at the
“An injury ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with’ the employment, and to have flowed from that source as a rational consequence. ’ ’
In Bryant v. Fissell, supra, the court said:
“For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental*1089 to the employment. * * # "We conclude, therefore, that an accident arises ‘in the course of the employment’ if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.”
The correct reasoning is: There must be a causal connection between the employment and the injury, and the injury must be the rational consequence of a hazard connected with the employment. In Madden’s Case, 222 Mass. 487, the court said:
‘ ‘ The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency, or there can be no recovery.”
It has been held in many cases that a workman required to travel by train is outside of the scope of his employment in attempting to board a train while in motion, although it was necessary for him to take that particular train in order to keep an appointment made for him by- his employer. Supporting such theory, see Northwestern Pac. R. Co. v. Industrial Acc. Com., 174 Cal. 297 (163 Pac. 1000); Jibb v. Chadwick & Co., (1915) 8 Butterworth W. C. C. 152.
In Griffith v. Cole Bros., supra, we said:
“It must appear by a preponderance that there is some causative connection between the injury and something peculiar to the employment (Jones v. United States Mut. Acc. Assn., 92 Iowa 652) ; that it resulted from some risk reasonably incident to the employment, because ‘out of’ involves the idea that the injury is in some sense due to the employment (Fitzgerald v. W. G. Clarke & Son, 2 K. B. [1908] 796) ; a causative danger peculiar to the work, and not ‘common to the neighborhood,’ an injury fairly traceable to the employment as a contributing cause, — to some hazard other than one to which the workman would have been equally exposed though in a different employment (McNicol’s Case, 215 Mass. 497 [102 N. E. 697]) a hazard peculiar to the business which is ‘the immediate cause’ of the injury (Rodger v. Paisley School Board, 1 Scots Law Times [1912] 271, and see Robson, Eckford & Co. v. Blakey, 5 B. W.*1090 C. C. 536); an injury due to something more than the normal risk to which all are subject, which, at the least, means that the employment necessarily accentuates the natural hazard attendant upon work done in the course of the employment (State v. District Court, 129 Minn. 502 [153 N. W. 119]).”
That the workman was negligent, even grossly negligent, and acted in flagrant disregard of his bodily safety, is readily apparent. But freedom from negligence is not required to be shown in behalf of the workman, and negligence of a workman is not a defense under the act. To defeat recovery, it must “appear that such negligence was willful, and with intent to cause injury; or the result of intoxication on the part of the injured party.” No question of willful misconduct arises in the case. The sole question in the case is whether the accident and consequent injury arose out of and in the course of the workman ’s employment. However, it is most material and pertinent to inquire: Is there anything peculiar to the hardware and implement business suggesting the rash venture which sacrificed Christensen’s life, and was there causal connection between the conditions under which this work was required to be performed and the resulting injury! Upon what reasonable basis may it be assumed that this workman, as a requirement of his occupation, was in any degree justified in the attempt to board the train as he did, instead of going into the caboose! It may be conceded that, after he had missed the passenger train, Christensen expected to go to Struble on this freight train. Counsel for claimant insists that Christensen was detained until it became necessary to make a dash for the train, after it was under headway. The record does not bear out such a conclusion. Counsel’s assumption that it became necessary for Christensen, after having been forced to take the train on the run, according to his unsupported assertion, to make the attempt he did to get aboard the fiat car, because the speed of the train suggested the impossibility of getting on the caboose, is not justified. If Christensen had moved on toward the caboose, instead of running along with the train by the side of the flat car, before attempting to jump onto the flat car, — for what distance the record does not disclose, — he would have reached the caboose at
Appellee relies with much confidence, to sustain his theory, upon Clem v. Chalmers Motor Co., 178 Mich. 340 (144 N. W. 848). This case has a feature similar to the case we have before us. The employer was erecting a building which was 160 feet long, 150 feet wide, and 19 to 20 feet high. The workmen were on top of the building, laying a roof. It was a flat roof. Between 9 and 10 o’clock, the men were instructed by a sub-foreman to come down from the top of the building for a coffee lunch. The men went to and fro from the roof in the course of work by means of a ladder built for that purpose, which was attached firmly to the side of the building, extending from
Counsel for applicant cites Decatur R. & Lt. Co. v. Industrial Board, 276 Ill. 472 (114 N E. 915), which he insists is exactly in point. We think the case readily distinguishable from the instant case. The workman, Mulverhill, was engaged' in unloading coal brought to the plant in cars. He had finished unloading all the coal that had been brought to the plant, and went to the railroad yards to see about getting more coal. He saw a train of cars loaded Avith coal, with a switchman standing on the front of the engine. Mulverhill stepped on the footboard on the rear of the engine, and soon .after fell off, and Avas run OA'er and injured. It Avas shown in evidence that, under direction of the chief engineer, Mulverhill Avas in the habit of seeing the switching crew and giving them directions about placing ears of coal at the plant, and that on other occasions he had gone doAvn to the yard to get them tó bring up coal. The court
White v. Industrial Com. of Wisconsin, 167 Wis. 483 (167 N. W. 816), cited by applicant, is a ease somewhat similar to the instant case, in that the employee fell to his death while attempting to board a moving car. White, applicant, under contract with the United States government, was engaged in transferring mail from the station of the Chicago, Milwaukee & St. Paul Railway Company to the station of the Chicago & Northwestern Railway Company, in the city of Madison, Wisconsin. One Andrew Behrend was. in the employ of White. Shortly before the arrival of a Chicago, Milwaukee & St. Paul train, Behrend was on the platform of the Northwestern station, for the purpose of receiving the mail and making the transfer. About'the time the train was coming to a stop, he climbed upon the side of the mail coach, took hold of the bars on each side of the mail door, slipped and fell-under the train, and received injuries from the effects of which he died. Under his contract, White was required to meet the incoming train at the station, receive the mail, and convey it to the other station. It appeared from the evidence that usually, when the train came to a stop opposite the Northwestern station or the intersection of the tracks, the employee Behrend would be standing there, and the mail dispatched to him at that point; but that sometimes when the train did not stop, or when the mail clerk was busy and did not have time to dispatch the mail at that point, Behrend would
“The evidence establishes without controversy that it was decedent’s' duty to transfer the mail at the place of accident; that the mail would not be given to the decedent to transfer at this point, unless he was at the door of the mail car when it was opened to discharge the pouch; that the train stopped at this place for a railroad crossing, at which it is common knowledge that trains stop only long enough to come to the dead stop required by law; that, if decedent was not at the door of the mail car when it was opened, the pouch would be carried on to the depot; that the train to which the pouch was to be transferred was then standing at its depot; and that the mail-car door was not open to discharge the pouch at the point where deceased first met the mail car. It is apparent that decedent had but a limited time in which to perform his duty of transferring this mail. This state of facts does support the finding of the commission that the decedent was performing services growing out of and incidental to his employment, especially when it is shown that others who had performed the same duty during the preceding fourteen years had ridden on the train while it was in motion, in order to expedite the transfer of this mail. It was decedent’s duty to get the mail and transfer it to the waiting train that was to carry it south. All that he did tended to expedite the performance of that duty.”
We think the holding, when the case is carefully analyzed, not antagonistic to the decision of the industrial commissioner in the instant case.
Other cases are cited by counsel-to sustain applicant’s position, which cases we have carefully examined. While these cases have features similar to the instant case, we think they are quite readily distinguishable, and not authority for holding in
We hold that Henry M. Christensen, the workman, was without the scope of his employment; that the injury and death did not arise out of his employment; and that applicant is not entitled to recover compensation payments from defendants.
The judgment and decree of the district court are reversed, and the decision of the industrial commissioner is sustained.'— Reversed.