41 So. 2d 493 | La. Ct. App. | 1949
The defendant has appealed from an adverse judgment in the lower court which awarded the plaintiff workmen's compensation as for total and permanent disability at the rate of $20.00 per week and $500.00 medical expenses. The case involves the application of what has come to be known in our workmen's compensation law as the "proximity rule". That rule relates to the right of an injured employee to recover compensation when he suffers a disability that results from an accident sustained by him which occurs at a public crossing which is in such close proximity to the premises of the plant at which he works as to constitute a necessary convenient passageway for the conduct of the employer's business, and in principle therefore, may be said to be a part of the premises.
The facts in the present case on which the application of the rule has to depend are not disputed. The essential particulars appear in a stipulation entered into between counsel and which is filed in the record. They are in effect as follows: Plaintiff was an employee of the defendant, Mathieson Chemical Corporation, whose business is of a hazardous nature. The corporation's plant is located about three miles west of Lake Charles, on the south side of U.S. Highway 90. The plaintiff resides in the town of Opelousas which is approximately 80 miles from Lake Charles. He had no means of conveyance of his own and the employer did not furnish his transportation. Like many other employees engaged in industrial occupation in the defendant's and other plants around Lake Charles, he went to work each morning on a bus or public conveyance owned and operated by *494 an individual, which left Opelousas in the morning at about 4:30 or 5 o'clock, so that he could report for work which commenced at 7:30.
Other facts developed are that the Mathieson plant is located approximately 1/5 of a mile south of Highway 90. It covers a large area of ground 100 yards in width and 300 yards in length which is entirely surrounded by a wire fence 7 feet high. There are several gates in the fence but the employees going to work had to use the gate which is located at about the center of the plant property line along Highway 90 which is designated as the entrance gate. A watchman is stationed at the guard house next to the gate and each employee entering has to exhibit his badge in order to be identified before being permitted to enter the premises.
As usual, on March 30, 1948, the plaintiff boarded the bus at Opelousas in order to reach work at 7:30 and made the customary journey from that town to the plant reaching there about 10 minutes before 7 o'clock. The bus, following its customary procedure, stopped opposite the entrance gate to the plant and discharged the plaintiff and some others who were likewise employed at the Mathieson plant. There is a large area on the south side of the highway which has been shelled by the Mathieson Corporation where buses may park when they have to stop at that point. No such landing area is provided on the north side of the highway and following its usual custom, the bus on which the plaintiff was riding stopped on its right side or the north shoulder of the highway in as much as it was traveling in a westerly direction, and discharged the employees who were going to get off there to go to work. The entrance gate of the plant was open preparatory to admitting the employees who were going to go on the 7:30 shift. Whilst the plaintiff was in the act of traversing the highway after having left the bus, he was struck by an automobile driven by a stranger, traveling in an easterly direction and suffered the injuries which have permanently and totally disabled him.
In discussing the rule invoked by the plaintiff in this case the two factors, (1) the proximity of the public passageway and its necessity and convenience for the conduct of the employer's business, and (2) the relation which the time of the accident bears to the time at which the injured employee was to assume his duties, are very important elements that have to be taken in consideration. These factors of course are not mentioned in the workmen's compensation statute itself, Act No. 20 of 1914, and its subsequent amendments, but in the spirit of that liberality which is to be accorded to an injured employee who prosecutes a claim for compensation under its provisions, the courts have almost invariably used them in construing the law which obliges an employer to pay compensation when the employee receives personal injuries resulting from an accident "arising out of and in the course of his employment". Dart's Stat., sec. 4392, Act No. 20 of 1914, § 2, as amended. As pointed out by this court in the recent case of Babineaux v. Giblin, La. App.,
The rule may be said to have originated in the well-known case of Cudahy Packing Company of Nebraska v. Parramore et al.,
Subsequently the Supreme Court of the United States, in the case of Bountiful Brick Company et al. v. Giles et al.,
In the present case the gate at the entrance to the plant premises which was adjacent to the highway was the only means of ingress and egress used by the employees. They were instructed to use that gate and no other. That gate is located 51 feet south of the paved portion and 60 feet south of the center line of the highway. The highway afforded the only way of travel by which the employees reached the plant and since they are a necessary and integral part of the operation of the plant it is a logical deduction that, as a means of reaching their place of employment, it becomes a necessary convenient passageway for the conduct of the employer's business, and this, notwithstanding the fact that the public generally is subjected to the same hazards as are the employees who have to cross it regularly in going to and coming from work.
On the point of location of the highway and of its proximity to the premises of the employer as well as the convenience which it affords, the case is governed by the same principles of law as were considered under facts of a similar nature in the two cases which we have cited. As further authority on this point, we might refer to the very recent case of Attaway v. Fidelity and Casualty Co. of New York, La. App.,
Counsel for defendant point out that the employer in this case provided a landing place for its employees who came to work on buses as did the plaintiff and we assume that it is meant that he should have availed himself of this place of safety in order to alight from the bus. As already stated however this area is on the south side of the highway and whilst it may well be that it did serve the useful purpose contended for by counsel for such employees coming from the west, it is apparent that it cannot be so used by those employees who are riding on a bus going west as was the plaintiff and who are customarily discharged on the north side of the highway. True, the buses traveling west might be pulled over to their left-hand side of the highway, or towards the south, and afford this same safety to employees traveling from the east, but the fact remains that they do not do so and the employees apparently have no control of their movements.
With regard to the time element and in measuring it from the moment when the accident occurred to the time at which the injured employee's services are to begin, the courts seem to allow what is called "a reasonable interval between the two periods". In the Parramore case [
As his employment contemplated his entry upon the premises the same as it contemplated his working there and had to include "a reasonable interval of time for that purpose", as stated in the Parramore case, we firmly believe that the rule as laid down in that case applies with equal if not greater force here. On this point also, the case of Attaway v. Fidelity Casualty Company, supra, is particularly pertinent.
We think it proper for us to make reference to the able manner in which this case was argued and briefed by counsel on both sides. Counsel for defendant especially wrote an exhaustive brief in which numerous cases are reviewed, some from our own courts as well as several from courts of other states. In some, on facts somewhat related to the facts in this case, the courts were not so liberal in applying the rule that is here involved. We believe however that the rule is too well recognized by the courts of Louisiana for us not to adhere to it in this case, and therefore we find ourselves constrained to follow and apply it to the facts as they appear from the record.
For the reasons stated, the judgment appealed from is affirmed at the costs of the defendant, appellant herein. *497