20 S.E.2d 172 | W. Va. | 1942
Paul C. Evans, an employee of the Valley Camp Coal Company, was killed in a railroad crossing accident on January 13, 1940. The accident occurred at No. 3 Mine of the Coal Company, situated between Elm Grove and Triadelphia, in Ohio County. His widow, the claimant herein, filed an application for compensation, which was denied by the Compensation Commissioner and the Compensation Appeal Board, from which actions she prosecutes this appeal. *337
The material facts are not in dispute. The mining plant in question, taken as a whole, is located on both sides of Little Wheeling Creek, and is also traversed by United States Route No. 40, locally known as the National Road, and by the main line of The Baltimore and Ohio Railroad Company between Wheeling and Pittsburgh, both located on the north side of Little Wheeling Creek, the railroad being nearest the creek. The tipple and other structures, directly connected with the mining operations, are located on the south side of the creek, and a spur of the railroad, which leaves the main track to the west of the mine, extends to the tipple and beyond. On the north side of the National Road are located the company offices, gasoline station, machine shop and other structures connected with the plant. A private road extends from the National Road across the railroad track, and over Little Wheeling Creek to the tipple and surrounding structures, and is the only means of vehicular access to the mine proper. A footpath along the railroad spur is used by pedestrians, and the mine is reached by pedestrians from other directions from the south. Pedestrians also use the private road. These conditions existed at the time of the accident. At that time there was considerable space around the company store, gasoline station and other structures on the north side of the National Road, and the supply house on the south side thereof, which employees used to park automobiles, with the acquiescence of the employer. There were also spaces along the private road near the fan house, hoist house, wash house and blacksmith shop near the tipple, which were used permissibly by employees to park automobiles. Apparently there was more space on the north side of the National Road, but one witness states that he had observed as many as fifteen automobiles parked at the different spaces at and around the mine proper. Evans, an electrician at the mine, was accustomed to drive his automobile from the National Road across the railroad tracks and creek over the private road, and to park the same near the mine. On the day of his death he had *338 followed this practice, and on completing his work for the day started home. At the crossing on the main line of the railroad, he was struck by a freight train and almost instantly killed. The sole question presented is whether the decedent at the time of his death was within the zone of his employment.
We have held that the term "zone of employment" implies reasonable proximity to the place of employment.Carper v. Compensation Commissioner,
The question presented here is one of law upon clearly proven facts, and, therefore, we are not overruling the Commissioner and the Appeal Board on a question of fact. We would only take such action in a case where we thought there had been a clear error in a factual finding. Here we think both the Commissioner and the Appeal Board misapplied the law.
The case will, therefore, be reversed and remanded to the Compensation Commissioner, with direction to enter an order granting compensation to the claimant.
Reversed and remanded. *340