172 N.E. 547 | Ind. Ct. App. | 1930
This is an appeal from an award of the Industrial Board of Indiana. The facts found by the Board were in substance as follows:
On June 19, 1928, one Kenneth Deckard was in the employ of the trustees of Indiana University at an average weekly wage of $21.60. On said date, he received an accidental injury as the result of a stroke of lightning which resulted in his instant death.
The deceased left surviving him his widow, Iva Deckard, and Norman Lee Deckard, his son, both of whom were residing with him at the time of his death and wholly dependent upon him for support.
The deceased was employed by the appellee to cut sod on the farm of appellee and went from his place of employment to a nearby tree to seek shelter from the rain, and, while 1, 2. under said tree, the same was struck by lightning and he was killed, and the board found from the evidence that the injury and death of the deceased was not the result of an accident arising out of his said employment and denied an award of compensation. The appellants duly excepted and this appeal followed. There is no dispute as to the facts found. The deceased was in the employ of the appellees at the time of his death, but was deceased's death the result of an accident arising out of his employment?
It does not suffice that the deceased was injured while in the course of his employment. It must further appear that his injury arose out of such employment. It must appear by a preponderance of the evidence that there is some causative connection between the injury and something *194
peculiar to the employment. It must arise out of some causative danger peculiar to the work and not common to the neighborhood. The words "out of" involve the idea that the accident is in some sense, due to the employment. Socha v. Cudahy Packing Co.
(1921),
Among the leading lightning cases in which compensation was denied are the following: Klawinski v. Lake Shore, etc., R.Co. (1914),
There are cases where death by lightning is compensable. When the workman, by reason of his employment, is more exposed to injury by lightning than are others in the same locality 3. and not so engaged, the injury may be said to arise out of the employment. State, ex rel., v. District Court
(1915),
In the case of Netherton v. Lightning Delivery Co. (1927),
In the case of Wiggins v. Industrial Accident Board, supra, the laborer was required to work on a steel road grader during a storm. He was killed by lightning. It was held that his death did not arise out of the employment.
In Alzina Construction Co. v. Industrial Commission, supra, where a workman was killed by lightning when near the building, while wheeling cement on trucks from a car to a building 20 feet high, the Supreme Court of Illinois held that the evidence did not show any causal connection between the accident and the work, or that the place of employment exposed deceased more to the risk of being struck by lightning than any other person in any other employment in the locality.
In Griffith v. Cole Bros., supra, an employee was killed by lightning while sitting in a tent in a place where the ground was saturated with water. There was no floor in the tent and there were no lightning rods or arresters and the tent was higher than surrounding objects. Near the tent was a wire fence and also a pile of steel rods. It was not shown in what direction or manner the lightning came into the tent. The court held that while it was shown that metal and wet grounds were conductors of electricity, there was no causal connection shown between the conditions which existed and the resulting injury.
In Slanina v. Industrial Commission (1927),
In Gale v. Krug Park Amusement Co., supra, where, in an unprecedented windstorm, a building in which an employee, a painter, had stored paints therein and had taken refuge from the storm, was blown from its foundation, a recovery was denied because the injury was attributable to a peril to which the public in general was exposed.
In Klawinski v. Lake Shore, etc., R. Co., supra, a section man was killed by lightning while in a barn in which he had taken refuge from a storm at the direction of his foreman. The court held there was no right of recovery.
In Their v. Widdifield, supra, it was held that a workman struck by lightning while standing in the doorway *197 of his employer's barn waiting for the storm to subside was not subjected to an exceptional risk or hazard.
As was said in the case of Netherton v. Lightning DeliveryCo., supra: "While the Workmen's Compensation Law is liberal in the highest degree in protecting those coming within its purview against industrial accidents, it is not intended to provide general insurance against death or injury under all conditions."
Under the facts of this case, the Industrial Board was justified in finding that the accident did not arise out of 4. the employment; therefore, the award is affirmed.