43 A.2d 597 | Pa. Super. Ct. | 1945
Argued March 5, 1945. In this workmen's compensation case Joseph Demuzzio, husband of the claimant, while working as a miner in the Humbolt Colliery of the Lattimer Coal Company was killed by a fall of rock on March 12, 1943. The referee awarded the claimant compensation but the award was reversed by the Workmen's Compensation board. The court below sustained the decision of the board and dismissed the appeal.
For some weeks before Demuzzio was killed, he and a fellow miner, John Krivak, had been working in a breast about sixteen or eighteen feet wide from which several headings had been driven. About three weeks before Demuzzio was killed, Krivak, the decedent's regular work partner, notified the mine foreman, Patrick Sharkey, that the face of the breast was dangerous.1
The day before Demuzzio's death, the deceased and Krivak reported the condition of the place to Sharkey, the foreman, and Resuta, another foreman, that the place was getting bad; and on the morning that the deceased was killed, he and Sharkey went to the face of the chamber or face of the breast and together examined the place about which Demuzzio and Krivak had complained.2 *461
Foreman Sharkey later told Demuzzio and his temporary buddy, Pogar, on that day not to work in the face of the breast but to work in the heading.3
The material questions in this case are whether the deceased violated the orders of his employer by working in a prohibited place which was not incidental to his employment; and whether the findings are consistent with each other and the disallowance of an award can be sustained without a capricious disregard of competent evidence. Schrock v. Stonycreek Coal Company,
The conclusion which must be drawn after an examination of the record is that Demuzzio was killed in a place where he was ordered not to work and that this violation of his orders deprives the claimant of compensation. The appellant's contention that the deceased in violation of orders had a right to use his own judgment and work in the breast on the ground that he was on the premises of his employer at the time of his death is untenable.
We are of the opinion that the case at bar is governed by the principle of law set out in Garrahan v. Glen Alden Coal Company,
This rule has been consistently applied by this Court in similar cases. See cases cited in Garrahan v. Glen Alden CoalCompany, supra.
In the course of its opinion, the board after reviewing the testimony, stated "The decedent was ordered to work in the heading and prohibited from working in the fall or breast because of the apparent danger. The decedent's act in entering and working in the forbidden area took him out of the course of his employment and his presence therein was not required by the nature of his employment."
A finding of fact4 by the Workmen's Compensation *463
Board that a claimant has failed to show that a compensable accident has been sustained is conclusive and cannot be disturbed, if based upon sufficient legally competent evidence, even though there is also competent evidence which, if believed, would have justified different findings. Eckenroad v. Rochester Pittsburgh Coal Company,
Judgment is affirmed.
Finding No. 9. The decedent was fatally injured by an accident at a time when he was no longer engaged in the course of his employment and at a place where his presence was not required by the nature of the work.