60 Ga. App. 16 | Ga. Ct. App. | 1939
Annie Parks, widow of Dan Parks, deceased, filed with the Industrial Board her claim for compensation against the City of Atlanta, because of the accidental death of Parks under circumstances hereinafter set forth. The director rendered an award in her favor, and this was affirmed by the board. On appeal the award was affirmed by the superior court, and the exception is to that judgment. It is apparently conceded that the deceased met his death while in the course of his employment, and the sole issue here presented is whether or not his death arose out of his employment. The undisputed facts are as follows: Dan Parks was in the employ of the City of Atlanta as a day laborer. On May 2, 1938, the day of his death, he was engaged in spraying a disinfectant in swamps and branches for the city, for the purpose of killing mosquitoes. In the performance of his duties he wore on his back, supported by shoulder-straps, a four-gallon can made of galvanized iron. While so engaged a drizzling rain began to fall. Cliff Ellison, a fellow worker, was performing like service in a stream near by, until a bolt of lightning struck a tree about 450 feet from the place where he was working and in the direction where the deceased was working. Ellison immediately left his work and returned to a city truck some distance away, and after the rain he went to join the deceased, and found him under a large tree, approximately 30 inches in diameter at the base and 85 to 90 feet in height. The deceased was in a semi-standing position against the bank of a stream, with one foot in the water. From all physical appearances the tree had been struck by a bolt of lightning at a point about 8 feet from the top, and the lightning had traveled down the tree to a point about 8 feet from its base, at which point it had left the tree under which the deceased’s body
While in respect to the tank used on the deceased’s back there was testimony' on behalf of the city that upon examination, after it had been in use several days following the death of Parks, it did not show any sign of having been struck by lightning, there was testimony on behalf of the claimant that at the time the spraying machine was loaded on the city wagon, shortly after the accident, there was what the witness regarded as a burned or hit place on the can. This witness testified that there was a burned hole in one boot of the deceased, but in this particular a witness for the city testified that he did not regard the hole as having been produced by lightning. Cliff Ellison, Parks’ coworker, testified that Parks had been spraying with the machine, that the lightning burned the strap in two, and that the clothes of the deceased were damp from the rain. An expert witness testified’ for the claimant, that, under conditions producing lightning, the highest thing above ground is the object that is invariably struck by lightning; that in his scientific opinion Parks, being near the tree and wearing the spraying machine, was in an unusually hazardous place at the time of the lightning; that if a person is standing in water and is shocked by an electrical force he becomes grounded and completes the force of the electricity, the water acting as a ground; that in an electric shock, where an object is insulated, the result is usually the tearing apart or explosion of whatever is struck; that the energy must be absorbed or dissipated, and that if the force is not immediately or quickly conducted to the earth the result is usually one of destruction, tearing things up; that the force of the lightning was strong enough to cut a hole in Parks’ boot; that, if that particular tree had not been there, it is a matter of speculation whether Parks would have been killed or struck by electricity because of the existence of the other trees near by, but from an analysis he would say that the high tree being in the path of the lightning was struck;
The director found that, although in his opinion the metal spraying machine did not increase the hazard, the other facts of the ease showed that the deceased, by reason of his employment, was subjected to a hazard not shared by the community, and that his death arose out of and in the course of his employment; and he awarded compensation to the claimant. The board affirmed the award, finding that the metal machine did increase the hazard, because it was conclusively shown that the lightning left the tree at a point approximately 8 feet from the ground, struck the employee, and then jumped to a smaller tree. The plaintiff in error contends that the duties of the employee did not require him to be under the tree, and that in fact he was not exposed to any danger not equally shared by the community; that the tree was not a contributing or extra hazard; that his death resulted solely from being in close proximity to a place where the lightning struck the ground, the metal spraying machine not shown to have been struck and not having conducted the lightning to the body of the employee; in short, that it could not be said that his death arose out of his employment, because the deceased was not exposed to any greater hazard than the community.
No exactly similar case has been before the appellate courts of this State. In lightning cases the rule is stated in 1 Schneider’s Workmen’s Compensation Law, 1141, as follows: “When the workman, by reason of his employment, is more exposed to injury by lightning than are others in the same locality and not so engaged, the injury may be said to arise out of the employment; when, however, it appears that nothing in the nature of the employment has exposed him to any more danger than that shared
In Globe Indemnity Co. v. MacKendree, 39 Ga. App. 58 (146 S. E. 46), affirmed by the Supreme Court on certiorari (169 Ga. 510, 150 S. E. 849), the employee was killed' from the force of a storm operating upon a tree, instead of lightning; but we think the' principle there announced is applicable to the facts of the present case. '“On July 21, 1927, the employee, in accordance with his custom and with the full knowledge, consent and approval of his employer, drove to Eloree in an automobile owned by his employer for the purpose of transacting the business of his employer with the agent at that place. After completing such business and in the afternoon of the same day, he ‘started on Ms return trip to make his usual report and accounting to his employer. But while proceeding in said automobile along a public State highway at a lawful speed and in a prudent and careful manner, a sudden storm overtook him while passing through a piece of woodland, and a tree was blown down by the wind across the automobile, crushing his head and producing almost instant death.’” The court said: “Whether an injury would be compensable if occasioned by a storm, without other contributing cause, is not a question in this case. Nor do we find in the so-called ‘lightning cases’ any logical precedent for a decision against compensation in the case at bar. Even in that class of eases the employer may be liable, where the employee was subjected to a greater danger from lightning by reason of his employment. MacKendree was not killed solely by a storm, but by the force of a storm operating upon a tree which stood by the wayside. Trees do occasionally fall, and perhaps every tree must fall at some time. The particular tree stood upon the route which MacKendree was accustomed to take in the regular discharge of his duties, and his employment exposed him to such danger as might exist from the falling of this or any other tree standing along the route so traveled by him. The risk was not one which was common to all mankind, or to which the public at large was equally exposed. ‘Where the duties of the employee entail his
We think that under the law and the facts the award in favor of the claimant was authorized, and that the superior court properly affirmed the same. The evidence showed that it is the unvarying characteristic of lightning to strike the highest object in a given area; that in the present case it struck the wet tree under which the deceased was found, which was the tallest tree in his immediate vicinity; that the clothes of the deceased were wet from the rain; that water and metal are efficient conductors of electricity; that the lightning, instead of proceeding entirely down the wet tall tree' into the ground at its base, left the tree at a point about 8 feet from the bottom, struck a smaller tree a few feet away, and made a hole in the ground near its base. During its course the lightning
Judgment affirmed.