26 A.2d 138 | Pa. Super. Ct. | 1942
Argued March 2, 1942.
The material question in this workmen's compensation case now is the same as when it was here before (Garrahan v. Glen AldenCoal Co.,
The referee, having found that deceased's presence at the point where he was discovered was in violation of positive orders of defendant, denied compensation on the ground that deceased did not receive his fatal injury in the course of his employment. Claimant appealed to the Workmen's Compensation Board which set aside all previous findings of fact, substituted seventeen findings of its own, and awarded compensation. The decision of the board was reversed by the court below, the award in favor of the claimant was set aside, and judgment was entered for defendant. Claimant has appealed.
The fourteenth, fifteenth, sixteenth, and seventeenth findings of fact made by the board are as follows:
"Fourteenth: When the deceased was first employed in defendant's mine as a door tender he was told by his superiors not to use the slope, but to use the manway.
"Fifteenth: The deceased was later promoted from door tender to brakeman with the duty of throwing certain switches as above described. Neither at the time when he was appointed to this work nor thereafter were any instructions or orders given to him not to use the slope.
"Sixteenth: The nature of deceased's employment required that he walk up the slope to throw the first switch. At the time of the accident, deceased was proceeding from the first switch to the double switch; in proceeding up the slope to a cross cut closer to the double switch the deceased was not violating a positive order of his employer. *4
"Seventeenth: That the injuries sustained by deceased which caused his death were sustained by accident at a place on the operating premises of his employer where the nature of his employment permitted him to be at at the time."
From these findings and the discussion of the case which precedes them in the board's opinion, it is obvious that two factors moved that body to reverse the referee and to award compensation. One is the alleged failure of appellee to repeat the prohibition against traveling in the slope when deceased's employment changed from door tender to brakeman. The other is that because deceased habitually used the slope in order to throw the first switch, which was located near the foot thereof, his presence on the slope at the point where he was found did not constitute a violation of the order as the nature of his employment permitted him to be there. We do not think either theory is tenable.
The fifteenth finding of fact is subject to at least two objections. First, there is not a scintilla of evidence to show that no orders were given to deceased prohibiting his use of the slope at the time his employment changed from door tender to brakeman, or at times thereafter. The record is replete with testimony as to the existence of this rule — every witness who worked in the mine acknowledged it — and for all that appears it might have been repeated periodically.1 Consequently, the board's fifteenth finding is only a conjecture, and violates the fundamental principle that findings of fact made by the compensation authorities *5
"shall be based only upon sufficient, competent evidence to justify same": Section 422 of the Workmen's Compensation Act of 1915, as amended by the Act of June 21, 1939, P.L. 520, § 1,
Naturally there were some (such as the witness Berkowski, whose job as slopeman or planeman was to ride the trips of cars up and down the slope) whose work required them to use the slope, and to whom the rule could not apply. The sixteenth and seventeenth findings of fact made by the board attempt to place deceased in that class, but the evidence fails to support them. While "acts in disregard of positive orders of the employer where the employee's duties included the doing of the act that caused the injury, or where his duties were so connected with the act that caused the injury that, as to it, he was not in the position of a *6
stranger or trespasser," do not preclude compensation for injuries sustained therefrom, nevertheless "injuries resulting from those acts which are in direct hostility to and in defiance of positive orders of the employer concerning instrumentalities, places or things about or on which the employee has no duty to perform, and with which his employment does not connect him, are not compensable under the clause in question": Dickey v.Pittsburgh Lake Erie R. Co.,
The case at bar is governed by Dickey v. Pittsburgh Lake ErieR. Co., supra. The rule laid down in that case has been applied consistently by this court in later cases.5
The principle announced in Flucker v. Carnegie Steel Co.,
Judgment is affirmed.
Brinley Evans, fire boss, testified: "Q. Had you ever talked to him — had you ever given the decedent any orders about the use of the slope? A. Yes. Q. What did you tell him? A. I told him not to walk the slope or to ride the trip. Q. How did you tell him to get out to the surface? A. Up the manway."
John Kuchta, section foreman, testified: "Q. And what orders did you give Mr. Garrahan about use of this slope? A. I told him not to walk the slope or ride the trip, always use the manway. Q. Did he have any duties to perform on the slope? A. No, sir."
"Tenth: There were two ways of reaching the first switch. The shortest way was by going up and across the slope; the other way was through old, abandoned workings, 200 feet farther than by way of the slope. The deceased always walked the slope way to throw the first switch.
"Eleventh: After throwing, the first switch, it was necessary for deceased either to return the long way round through the abandoned workings to the manway and thence up the manway to the double switch or to cross the slope and go through one of the cross cuts to the manway."