165 S.E. 669 | W. Va. | 1932
Claimant, who lost the sight of both eyes while working in a coal mine, was refused compensation on the ground that the injury was due to his own wilful misconduct.
According to his testimony, claimant, on October 21, 1931, was preparing to shoot down coal and while tamping the powder back in the hole, it exploded in his face. The employer, however, after investigation, advanced the theory that the accident was due to the use of a short fuse, basing the same upon the condition of the working place after the accident and the discovery of three pieces of fuse in the vicinity thereof. It appears from the evidence that an eight-inch piece of fuse was found in a pair of claimant's trousers, which he, upon going to work, had placed with his dinner pail, powder bag, etc., some fifty feet from the face of the coal and around the corner from where he was working; a coil of fuse approximately five feet in length, under a rock near the dinner pail; and a six-inch piece of burnt fuse, about fifteen feet away from the place of the shot and in the string of slack thrown out by the explosion. While claimant admitted having the first two pieces of fuse in his possession, he denies knowledge of the third, stating that it must have been left there by men shooting slate and rock. He explained that the fuse in his trouser's pocket had been there since the 9th or 10th of the month; that he forgot to return it to the contractor (Hughes) for whom he was working at that time; and that he did not wear the trousers again because of their ragged condition, until the day of the accident, when he put them on because it was "kinda cold". As to the longer piece of fuse, claimant testified that it had been hidden since the 14th, his last shift on company work. It appears that during the period 7th to 14th claimant had been working under Hughes on company work, and that Hughes had secured fuse from the mine foreman for use in shooting down rock and slate. Claimant *506 stated that on the morning of the accident he thought of the long piece of fuse and took it from its place of hiding (some 800 to 1000 feet distant) and placed it near his bucket and other belongings, for the purpose of returning it to Hughes, explaining that he had forgotten to turn it over to Hughes on the 16th and 17th, the only days, except that of the accident, he worked since finishing work under Hughes.
The record contains a stipulation that Charley Coffman, had he been present, would have testified that after the 10th day of October, 1931, Hughes permitted him and claimant to use fuse in shooting rock and that Hughes was loading coal and was not present on October 14th. Hughes, however, testified that he had directed Coffman on the 10th to shoot rock in a certain entry; that shortly thereafter he found the work unsatisfactory, and told Coffman it would not do and that he (Hughes) would shoot it himself thereafter; and that he didn't give them any more orders to shoot fuse; that he kept the fuse after that.
Recurring to the scene of the accident, a miner's cap was found under the coal and dust brought down by the shot, and in line with the burnt fuse. The tamping bar was bent at right angles, and the needle was found some distance away and around the corner from the place of the shot. Claimant admits that the needle was at the place indicated* by witnesses for employer, explaining that he had put off one shot and it "failed to pull", and that he was not ready for the needle when the shot in question unexpectedly exploded. It was shown by testimony for the employer that such an accident could have resulted from the use of a short fuse.
Claimant admitted that the employer had a rule against the use of any kind of fuse in shooting down coal. He denies the use of fuse for that purpose. Fuse, however, subject to certain restrictions, was permitted to be used in shooting down slate and rock.
The position taken by the claimant is that he has shown an injury, and that the burden of showing wilful violation rests with the employer. In view of his own explanations, he contends that the circumstances are not sufficient to warrant *507 a finding that he was using fuse in violation of the company's orders, at the time of his injury.
If claimant's explanation of his possession of the two pieces of live fuse were admitted, he might well contend that the employer had failed to establish a wilful violation of one of its rules regarding the use of fuse, for he would have been entitled to all favorable inferences arising from his story.Goble v. Commissioner,
The ruling of the commissioner is accordingly affirmed.
Affirmed.